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

Kosovo at the Court of Arbitration for Sport – Constructing Statehood Through Sport? By Ryan Gauthier (Thompson Rivers University)

17. March 2017 Antoine Duval Blog, International Sports Law Cases, International Sports Law Commentaries (0)

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


“Serious sport…is war minus the shooting.” – George Orwell

 

In May 2016, the Union of European Football Associations (UEFA) admitted the Football Federation of Kosovo (Kosovo) as a member. The voting was close, with 28 member federations in favour, 24 opposed, and 2 whose votes were declared invalid. The practical outcome of this decision is that Kosovo would be able participate in the UEFA Euro championship, and that Kosovo teams could qualify for the UEFA Champions’ League or Europa League. More...


International and European Sports Law – Monthly Report – February 2017. By Tomáš Grell

13. March 2017 Antoine Duval Blog, International Sports Law Cases, International Sports Law Commentaries, International Sports Law Events, International Sports Law Material, International Sports Law Publications (0)

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

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

6. March 2017 Antoine Duval Blog, International Sports Law Cases, International Sports Law Commentaries (0)

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]  More...



FIFA's Responsibility for Human Rights Abuses in Qatar - Part I: The Claims Against FIFA - By Tomáš Grell

28. February 2017 Oskar van Maren Blog, International Sports Law Cases, International Sports Law Commentaries (0)

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.

On 2 December 2010, the FIFA Executive Committee elected Qatar as host of the 2022 FIFA World Cup ('World Cup'), thereby triggering a wave of controversies which underlined, for the most part, the country's modest size, lack of football history, local climate, disproportionate costs or corruption that accompanied the selection procedure. Furthermore, opponents of the decision to award the World Cup to the tiny oil-rich Gulf country also emphasized the country's negative human rights record.

More than six years later, on 3 January 2017, the Commercial Court of the Canton of Zurich ('Court') dismissed the lawsuit filed against FIFA[1] 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').[2] The Plaintiffs requested the Court to find FIFA responsible for alleged human rights violations of migrant workers in connection with the World Cup in Qatar. Had the Plaintiffs' claims been upheld by the Court, such decision would have had far-reaching consequences on the fate of thousands of migrants, mostly from India, Nepal and Bangladesh, who are currently working on the construction of sporting facilities and other infrastructure associated with organization of the World Cup. More...

Doyen vs. Sporting II: The Bitter End of Sporting’s Fight at the Swiss Federal Supreme Court. By Shervine Nafissi

20. February 2017 Oskar van Maren Blog, International Sports Law Cases, International Sports Law Commentaries (0)

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

 

Introduction

The factual background

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

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

Doyen vs. Sporting I: Doyen’s Pyrrhic Victory at the CAS

17. February 2017 Antoine Duval Blog, International Sports Law Cases, International Sports Law Commentaries (3)

At the end of December 2015, the CAS decided on a very public contractual dispute between Sporting Clube de Portugal Futebol SAD (Sporting) and Doyen Sports Investments Limited (Doyen). The club was claiming that Doyen’s Economic Rights Participation Agreement (ERPA) was invalid and refused to pay Doyen’s due share on the transfer of Marcos Rojo to Manchester United. The dispute made a lot of noise (see the excellent coverage by Tariq Panja from Bloomberg here, here and here) as it was the first TPO case heard by the CAS after FIFA’s ban. Yet, and it has to be clear from the outset, the case does not affect the legality of FIFA’s TPO ban; it concerned only the compatibility of Doyen’s ERPA with Swiss civil law. The hearing took place in June 2015, but the case was put under a new light by the football leaks revelations unveiled at the end of 2015 (see our blog from December 2015). Despite these revelations, the CAS award favoured Doyen, and was luckily for us quickly made available on the old football leaks website. This blog will provide a commentary of the CAS decision. It will be followed in the coming days by a commentary by Shervine Nafissi on the judgment, on appeal, by the Swiss Federal Tribunal. More...

UEFA’s Financial Fair Play Regulations and the Rise of Football’s 1%

10. February 2017 Oskar van Maren Blog, International Sports Law Commentaries (2)

On 12 January 2017 UEFA published its eighth club licensing benchmarking report on European football, concerning the financial year of 2015. In the press release that accompanied the report, UEFA proudly announced that Financial Fair Play (FFP) has had a huge positive impact on European football, creating a more stable financial environment. Important findings included a rise of aggregate operating profits of €1.5bn in the last two years, compared to losses of €700m in the two years immediately prior to the introduction of Financial Fair Play.



Source: UEFA’s eighth club licensing benchmarking report on European football, slide 107.


 Meanwhile the aggregate losses dropped by 81% from €1.7bn in 2011 to just over €300m in 2015.More...




International and European Sports Law – Monthly Report – January 2017. By Saverio Spera.

8. February 2017 Oskar van Maren Blog, International Sports Law Cases, International Sports Law Commentaries, International Sports Law Events, International Sports Law Material, International Sports Law Publications (0)

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


The Headlines

The Diarra ruling of the Tribunal of Charleroi

On 19 January 2017, the Hainaut Commercial Tribunal – Charleroi rendered its decision on the lawsuit filed by the football player Lassana Diarra against FIFA and the Belgian FA (URBSFA) for damages caused by not being able to exercise the status of a professional football player during the entire 2014/2015 season. The lawsuit is linked to the decision, rendered by the FIFA Dispute Resolution Chamber (DRC) on April 2015, to support Lokomotiv’s decision to terminate the player’s contract and to order Diarra to pay Lokomotiv the amount of EUR 10,500,000 for having breached his contract. According to the plaintiff, Diarra’s opportunity to be recruited by Sporting Charleroi was denied due to the club being potentially considered jointly liable for Diarra’s compensation pursuant to Article 17 (2) RSTP. The Belgian court held strongly that “when the contract is terminated by the club, the player must have the possibility to sign a new contract with a new employer, without restrictions to his free movement”. This case highlighted, once again, the need to read the RSTP in the light of EU law. Moreover, the decision is laying further ground for broader challenges to the RSTP on the basis of EU law (for a deeper insight into the Diarra ruling, see the recent blog written by our senior researcher Antoine Duval) More...


Introducing the new legal challenges of E-Sports. By N. Emre Bilginoglu

6. February 2017 Oskar van Maren Blog, International Sports Law Commentaries (1)

Editor’s Note: Emre Bilginoglu[1] is an attorney in Istanbul and the co-founder of the Turkish E-Sports Players Association, a non-profit based in Istanbul that aims to provide assistance to professional gamers and to work on the relevant laws affecting them. 


The world is witnessing the rise of a new sport that is growing at an incredible speed: E-Sports. We are only starting to understand its legal implications and challenges.

In recent years, E-Sports has managed to attract thousands of fans to arenas to see a group of people play a video game. These people are literally professional gamers (cyber athletes)[2] who make money by competing in tournaments. Not all video games have tournaments in which professional players compete against each other.

The most played games in E-Sports competitions are League of Legends (LoL), Defense of the Ancients 2 (DotA 2) and Counter-Strike: Global Offensive (CS:GO). LoL and DotA are both Multiplayer online battle arena (MOBA) games, a genre of strategy video games in which the player controls a single character in one of two teams. The goal of the game is to destroy the opponent’s main structure. CS:GO is a first-person shooter (FPS) game, a genre of video games where the player engages combat through a first-person perspective. The main objective in CS:GO is to eliminate the opposing team or to terrorize or counter-terrorize, planting bombs or rescuing hostages. Other games that have (popular) E-Sports competitions include Starcraft II (real time strategy), Hearthstone (collectible card video game), Call of Duty (FPS) and FIFA (football).

The gaming requires cooperation between team players, a high level of concentration, rapid reactions and some seriously fast clicking. E-Sports is a groovy term to describe organized competitive computer gaming. The E-Sports industry is exponentially growing, amounting to values expressed in billions of dollars. According to Newzoo, a website dedicated to the collection of E-Sports data, there are some 250 million occasional viewers of E-Sports with Asia-Pacific accounting for half of the total amount. The growth of the industry is indubitably supported by online streaming media platforms. This article aims to explain what E-Sports is and to give the readers an insight on the key legal questions raised by it. More...


Asser International Sports Law Blog | In Egypt, Broadcasting Football is a Question of Sovereignty … for Now! By Tarek Badawy, Inji Fathalla, and Nadim Magdy

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

In Egypt, Broadcasting Football is a Question of Sovereignty … for Now! By Tarek Badawy, Inji Fathalla, and Nadim Magdy

20. February 2015 Oskar van Maren Blog, International Sports Law Cases, International Sports Law Commentaries (0)

On 15 April 2014, the Cairo Economic Court (the “Court") issued a seminal judgment declaring the broadcasting of a football match a sovereign act of State.[1]


Background

In Al-Jazeera v. the Minister of Culture, Minister of Information, and the Chairman of the Board of Directors of the Radio and Television Union, a case registered under 819/5JY, the Al-Jazeera TV Network (the “Plaintiff” or “Al-Jazeera”) sued the Egyptian Radio and Television Union (“ERTU” or the “Union”) et al. (collectively, the “Respondents”) seeking compensation for material and moral damages amounting to three (3) million USD, in addition to interest, for their alleged breach of the Plaintiff’s exclusive right to broadcast a World Cup-qualification match in Egypt.  Al-Jazeera obtained such exclusive right through an agreement it signed with Sportfive, a sports marketing company that had acquired the right to broadcast Confederation of African Football (“CAF”) World Cup-qualification matches.

ERTU reportedly broadcasted the much-anticipated match between Egypt and Ghana live on 15 October 2013 without obtaining Al-Jazeera’s written approval, in violation of the Plaintiff’s intellectual property rights.


Arguments of the Parties

Plaintiff’s Position

The Plaintiff explained that its right was protected by various provisions of Law No. 82/2002 on the Protection of Intellectual Property Rights (the “IP Law”). Most notably, the Plaintiff referred to Article 139, which provides for copyright protection for both Egyptians and citizens of World Trade Organization member States, and Article 149, which grants copyright owners the right to transfer, in writing, all or some of their rights in the copyrighted content to third parties.

In addition, the Plaintiff stated that Articles 157, 158 and 159 of the IP Law gave it exclusive economic rights in the content it owned or acquired, which precludes the exploitation of broadcasting the match in any manner (including its reproduction and communication to the public) by a third party without its prior written authorization.

By broadcasting the match live on Egyptian channels without obtaining the Al-Jazeera’s prior written authorization, ERTU - the Plaintiff argued - breached the Plaintiff’s intellectual property rights that are protected under Egyptian and international law.  

Respondents’ Position

The Respondents emphasized the political nature of the decision to broadcast the match. They argued that Egypt’s executive branch of government was entitled to take decisions respecting the broadcasting of the match in the interest of Egypt, and its peace and security, without incurring any penalty or enduring judicial scrutiny.  The Respondents added that broadcasting the match was an activity that took place entirely within Egypt pursuant to an executive decision and, as such, was an act of State that was immune to judicial scrutiny. Accordingly, broadcasting the match did not violate any laws or agreements. 


Judgment on Jurisdiction

The Court began its assessment of the case by examining its jurisdiction in accordance with Article 109 of the Code of Civil and Commercial Procedures, which grants courts the power to rule on their own jurisdiction in any case before them.  Then, it consulted Law No. 13 /1979 relating to the Egyptian Radio and Television Union, as amended (the “ERTU Law”), which provided for the establishment of a national authority under the name of “Egyptian Radio and Television Union”.  Among other things, the ERTU Law states that the Union is (i) deemed a national authority that assumes all the functions and duties associated with audio-visual media and broadcasting services in Egypt; (ii) shall have a separate juridical personality; and (iii) shall be subordinated to the Minister of Information.

The Court established that the decision to broadcast this match was issued by ERTU, a national authority entitled to broadcast audio-visual media in Egypt for the purpose of achieving national interests and services, and ensuring collective interest in all aspects including sports.

Against this background, the Court concluded that the Union’s decision to broadcast the match fell within the Union’s mandate, which was to be exercised on Egyptian territory and without interfering with the sovereignty or law of another state.  Therefore, the decision to broadcast the game was, in the opinion of the Court, an act of sovereignty that may not be the subject of litigation; and the executive authority was permitted to take all necessary measures in Egypt’s interests, while enjoying immunity against court supervision.  

Finding that it lacked jurisdiction, the Court did not address the Plaintiff’s claims relating to its intellectual property rights.


Lessons Learned and Next Steps

The judgment raises several questions regarding the scope of sovereign powers that can be exercised by a State.  Most importantly, it provides a novel interpretation of what constitutes an act of State. Furthermore, the decision will likely push companies entering into broadcasting agreements with the Union to take various precautions, such as  subjecting potential disputes to international arbitration, as opposed to the supervision of local courts. 

The judgment comes as another blow to Al-Jazeera in Egypt, which saw three of its journalists sentenced by an Egyptian court to prison terms ranging from seven (7) to ten (10) years for charges that included spreading false news. One of the journalists, Peter Greste, has already been deported to his native Australia pursuant to a decree law that allows the deportation of foreigners to their home countries to stand trial or serve the remainder of their sentence.  The other journalists have been released on bail and are currently awaiting their retrial after the Court of Cassation, Egypt’s highest court, quashed their sentence.

On 11 June 2014, Al-Jazeera appealed the Court’s decision to the Court of Cassation, explaining that a sovereign act of State can be easily distinguished from regular administrative activities such as the ones typically performed by the Union.  According to Al-Jazeera, an act of State covers high political considerations, such as the protection of national interests, upholding the terms and principles of the Constitution, and overseeing Egypt’s relations with other States to ensure domestic and international peace and security. A football match does not meet any of these criteria.

It is likely that the Court of Cassation will overturn the Court’s judgment in light of Egypt’s IP Law and the fact that broadcasting and licensing agreements are a regular business activity.  It is also important to observe how the Court of Cassation will address the lower Court’s novel interpretation of the act of State doctrine. While soccer is the most popular sport in Egypt, it is unclear how broadcasting a match can be linked to a State’s higher political interests.

Equally unclear is how Al-Jazeera will react should the Court of Cassation uphold the judgment, and whether it will consider resorting to international arbitration given that Egypt and Qatar signed a bilateral investment treaty in 1999 that protects investors’ intellectual property rights, among other things.


[1] Tarek Badawy (tarek.badawy@shahidlaw.com), Inji Fathalla (inji.fathalla@shahidlaw.com), and Nadim Magdy (nadim.magdy@shahidlaw.com) are Attorneys-at-Law at Sarwat A. Shahid Law Firm (“Shahid Law”) in Cairo, Egypt.  The views expressed in this articles are those of the authors and do not constitute legal advice. 

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