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: TPO and Spanish football, friends with(out) benefits?

Update: On 14 April footballleaks released a series of documents concerning Sporting de Gijón. Therefore, I have updated this blog on 19 April to take into account the new information provided.  

Doyen Sports’ TPO (or TPI) model has been touted as a “viable alternative source of finance much needed by the large majority of football clubs in Europe". These are the words of Doyen’s CEO, Nélio Lucas, during a debate on (the prohibition of) TPO held at the European Parliament in Brussels last January. During that same debate, La Liga’s president, Javier Tebas, contended that professional football clubs, as private undertakings, should have the right to obtain funding by private investors to, among other reasons, “pay off the club’s debts or to compete better”. Indeed, defendants of the TPO model continuously argue that third party investors, such as Doyen, only have the clubs’ best interests in mind, being the only ones capable and willing to prevent professional football clubs from going bankrupt. This claim constitutes an important argument for the defendants of the TPO model, such as La Liga and La Liga Portuguesa, who have jointly submitted a complaint in front of the European Commission against FIFA’s ban of the practice.[1]

The eruption of footballleaks provided the essential material necessary to test this claim. It allows us to better analyse and understand the functioning of third party investment and the consequences for clubs who use these services. The leaked contracts between Doyen and, for example, FC Twente, showed that the club’s short term financial boost came at the expense of its long-term financial stability. If a club is incapable of transferring players for at least the minimum price set in Doyen’s contracts, it will find itself in a financially more precarious situation than before signing the Economic Rights Participation Agreement (ERPA). TPO might have made FC Twente more competitive in the short run, in the long run it pushed the club (very) close to bankruptcy.

More than four months after its launch, footballleaks continues to publish documents from the football world, most notably Doyen’s ERPAs involving Spanish clubs. For this blog, our dataset will cover the two ERPAs between Doyen and Sporting de Gijón (found here and here); the ERPAs between Doyen and Sevilla FC for Kondogbia and Babá; the ERPAs between Doyen and Getafe for Abdelazziz Barreda and Pedro León; the ERPA between Doyen and Granada CF for Luís Martins; the ERPA between Doyen and Atlético Madrid for Josuha Guilavogui; and the ERPA between Doyen and Valencia CF for Dorlan Pabón.

The first part of this blog will provide background information on the recent economic history of Spanish football. The posterior in-depth analysis of the ERPAs will thus be placed in context. The blog will also include a table with the relevant facts from the ERPAs completed with the information included in an Excel document showing a map of deals and transactions allegedly conducted by Doyen and recently published on footballleaks. Relevant facts and figures that are not found in the ERPAs or in the Excel document, will be taken from the website www.transfermarkt.de. Based on the outcome of the analysis, we will attempt to conclude whether, and to what extent, the ERPAs have been profitable for the clubs involved, from a financial and competitive perspective.

 

Financial misery and TV rights inequality off the field

The financial misery

Spain was one of the countries most affected by the global financial crisis that commenced in 2008. The unemployment rate was above 25% for a long period of time and its budget deficit was about 10% from 2008 to 2012. The (professional) football sector also suffered from this general financial crisis. A study on the financial situation of Spanish clubs during the period 2007-2011 shows that by June 2011, 80% of La Liga clubs had a negative working capital. This meant that the clubs’ short term assets were not enough to cover the short term debts. The study further explains that the main reason for the financial difficulties is the excess of expenditures on players, i.e. paying transfer fees and salaries that clubs cannot afford. Not surprisingly, by 2011, half of the clubs from the Spanish first and second division had entered bankruptcy proceedings. A large part of the total debt was owed to the Spanish public authorities. In 2012, clubs in Spain's top two divisions collectively owed some €750 million to the tax authorities and another €600 million to the social security system. One of the teams who signed ERPAs with Doyen, Atlético Madrid, was known to have a tax debt which accounted for a fifth of the entire league’s tax debt. In fact, their tax debt of over €120 million amounted to over 60% of their annual revenue. Almost 40% of the clubs in the top two divisions presented negative equity, meaning that they were in clear need for funds from other parties. The general economic crisis prevented clubs to get these funds through normal means, like shareholders, members, sponsorships and bank loans. Local authorities were many times willing to aid their clubs. For example, the municipality of Gijón had rescued Sporting de Gijón by relocating its youth training facilities and subsequently buying the facilities for €12 million. Another example is that of Valencia CF. In its ambition to grow, the club decided to build a new stadium. The idea was to finance the new stadium by selling the old stadium. Once again, due to the financial crisis, and particularly the collapse of the housing market, it suddenly was incapable of selling the old stadium for the required price. The construction on the new stadium had already commenced with loaned money which could not be paid back. The municipality’s decision to place a State guarantee on this loan has been the subject of a formal State aid investigation by the European Commission.

 

TV Rights income inequality

One of the most important ways to generate income for professional football clubs is through the selling of TV rights. The Spanish clubs combined generated roughly €700 million per year from the selling of TV rights between 2010 and 2015.[2] This is slightly more than the €628 million the German Bundesliga was making per year between 2013 and 2016, but less than €940 million the Italian league was making in the 2012-13 season. The English Premier League is in a league of its own in this regard, which is making about €1.2 billion per year from the 2013-14 season onwards.[3]

Notwithstanding the total €700 million a year, most Spanish clubs do not derive enough money from selling the TV rights to compensate their losses. One has to keep in mind that where the clubs of Europe’s other major football leagues (e.g. England, Germany, France and Italy) were selling their TV rights jointly, Spanish clubs were still selling their TV rights individually. By means of the individual selling system, Spain’s two most popular clubs, Real Madrid and FC Barcelona, were capable of selling their TV rights for much more money than the other clubs. In the 2010/11 season for example, out of the €641 million generated in total, FC Barcelona got €163 million, whereas Real Madrid got €156 million. The remaining 16 clubs of La Liga had to share the remaining €322 million, which is slightly more than €20 million per club on average. By contrast, the ‘smaller clubs’ of the English Premier League were still making at least €49 million in that same season, which is two-and-a-half times as much as their Spanish counterparts.[4] Even the club that was earning least money in Italy in 2012, Pescara, was earning more per year from the selling of TV rights than the average Spanish club (€25 million).

Calls for a fairer distribution of TV rights income in Spain have been heard for years, particularly from the smaller clubs, but the switch to a joint selling system will only take place as of the start of the 2016-17 season. It is believed that continuous lobbying by Real Madrid and FC Barcelona against the joint selling system is the main reason for this delay. In a way, it could be argued that apart from reckless risks on the transfer market and the effects of the Spanish financial crisis, the dominant position of Real Madrid and FC Barcelona is what led to many Spanish clubs being in severe financial difficulties. The urge of these clubs to turn to investment companies like Doyen becomes more understandable, given that the system itself did not allow them from obtaining funds from other ‘normal’ sources.    

 

The ERPA’s and its aftermaths explained

On the day of writing this blog (12 April 2016), nine ERPAs between Doyen and Spanish football clubs were published on the website of footballleaks. The ERPAs are divided in two groups: Firstly, the ERPAs that proved to be successful for both the club and Doyen are analysed; the second part combines all the ERPAs in which the players concerned were either not sold for high enough profit, or not transferred at all. As will be shown, these ERPAs had mostly negative financial consequences for the clubs.

 

The successful ERPAS: Kondogbia and Barrada

Sevilla’s recent sporting successes, most notably winning the Europa League four times since 2006, are said to have been the result of a high level youth academy combined with an excellent scouting network. However, it has never been a secret that Sevilla made use of the services provided by Doyen, including the signing of ERPAs. In a well-publicised seminar on TPO that took place in April 2015, Sevilla defended the TPO model and made clear that it was against an outright ban of the practice. The ERPA concerning Geoffrey Kondogbia and his subsequent transfer to AS Monaco can explain why Sevilla is in favour of the TPO model. Kondogbia was transferred from RC Lens to Sevilla on the same date as the signing of the ERPA (26 July 2012) for €3 million. With the objective of obtaining 100% of the Economic rights, Doyen paid RC Lens the full amount of the transfer fee. In turn, Sevilla would buy from Doyen 50% of the economic rights for €1.65 million. Even though the minimum transfer fee was set by the parties at €6 million, Kondogbia was sold only one year later to AS Monaco for a staggering €20 million. An excellent deal for Doyen, which registered a profit of €7.89 million.[5] This ERPA is an example of a collaboration between a club and an investment fund, which has been highly profitable for both. With the “help” of Doyen, Sevilla managed to sign a young player and sell him for a profit not long after. However, as can be seen below, even Sevilla has signed ERPAs that have not been very beneficial for the club.

 

A second “successful ERPA” signed between Doyen and a Spanish club was the ERPA between Doyen and Getafe for Barrada. Similar to many other ERPAs, it stipulated that Getafe was not able to obtain financial support from the banking system due “to the current financial crisis”. Therefore, Getafe decided to sell 60% of the economic rights of one of its most promising young players for €1.5 million to Doyen. Both parties agreed that the minimum transfer value of Barrada was €5 million. Consequently, as can be deducted under paragraph 7 of the ERPA, Doyen’s minimum return would always be at least €3 million (60% of €5 million), guaranteeing Doyen a profit of €1.5 million (€3 million minimum return minus €1.5 million grant fee). The minimum return was easily surpassed after Barrada was transferred to Al-Jazira for €8.5 million in 2013. In accordance with Doyen’s own figures, the investment fund obtained €3.35 million for this transfer, a profit of 223%.[6]

 

The many “failed” ERPAs

Atlético Madrid was no novice to the practice of TPO when it sold 50% of Joshua Guivalogui’s economic rights for €5 million to Doyen. As can be seen from the ‘Map of Deals’, Atlético had previously sold 33% of the economic rights of the highly successful Atlético player, Falcao, to Doyen for €10 million. His later transfer to AS Monaco for €43 million was probably also economically beneficial for Atlético. Guivalogui, however, has been less successful wearing an Atlético shirt. He has played seven games in total for the club in two-and-a-half years, having been loaned to St-Étienne for the 2013-14 season, and to VfL Wolfsburg for the 2014-15 and 2015-16 seasons. If Wolfsburg decides to lift the option it has to buy Guivalogui for €4 million[7], Atlético Madrid will probably need to pay an additional amount to Doyen in order to reach the agreed minimum fee of €6.5 million.[8]

As regards Sevilla FC, where the ERPA concerning Kondogbia can be seen as “successful”, Babá’s ERPA tells a completely different story. Sevilla sold 20% of Babá’s economic rights for €660.000 to Doyen in 2012. Nonetheless, Babá never managed to secure a spot in the Sevilla squad and he was loaned out to Getafe and Levante between 2013 and 2015. After his contract expired with Sevilla in the summer of 2015, he moved back to his former club Marítimo as a free agent. Although Sevilla did not receive a fee for this transfer, Doyen still obtained a guaranteed profit of €148.000, as can be seen from the ‘map of deals’.

The Guivalogui ERPA and the Babá ERPA tell a similar story. Both players did not fulfil the expectations the clubs had of them at the moment Doyen bought parts of their economic rights. As a result, they were transferred, or are going to be transferred, for an amount well below the agreed minimum return. A similar run of events occurred with Luís Martins and Dorlan Pabon. Both players were not successful at Granada and Valencia respectively, and were transferred at a loss for the club. The exact figures of the transfers can be found in the table below.

The ERPA’s signed between Doyen and Sporting de Gijón are particularly interesting in terms of “failure”, because they illustrate perfectly the desperate situation the club found itself in. Sporting has been on the verge of disappearing not once, but several times in the last 10 to 15 years. In 2005, its total debt amounted to €51 million, with more than half owed to the public authorities. As a result, the club entered bankruptcy proceedings. In 2007, a settlement was reached between the club and its creditors. Even though the club still had a debt of €35.8 million, a Spanish court decided to terminate the bankruptcy proceedings. By the second half of 2011, the club presented a positive balance sheet at the shareholders’ general assembly for a fifth year in a row, but in reality Sporting was still acute financial difficulties, as the club would admit later on. It is this acute need for money that made the club turned to Doyen twice in less than a year. The fact that Sporting de Gijón is still alive today (albeit in danger of relegating to the second division), makes one wonder whether the ERPA with Doyen actually aided the club in its fight for survival or whether it worsened the situation in a similar way as FC Twente’s.

The first agreement concerns the purchase for €2 million of part of the economic rights of nine players who, at the time of signing, were registered as Sporting players.[9] Future transfers of one or more of these players would need to generate a profit of €7 million for Doyen.[10] The lifespan of the first agreement was not very long, as it was replaced by a second ERPA on 22 March 2012. Indeed, Sporting de Gijón stated officially on 23 February 2016 that the first ERPA never deployed any legal effects.

The first ERPA and the second ERPA between Doyen and Sporting show some clear similarities. For an amount of €2 million, Doyen buys 25% of the economic rights of all the players of both the first team and Sporting B (the second team).[11] This percentage remains 25% until Doyen obtains an amount of €7 million from the transfers of Sporting players to other clubs. Once this amount is reached, the percentage will be reduced to 15% until a further €3 million is earned by Doyen. Therefore, the minimum return Doyen should get is that of €10 million. Should Doyen not have received €7 million or more by 31 January 2015, the percentage of the economic rights owned by Doyen of all the Sporting and Sporting B players will be increased to 35%. Doyen's share of the economic rights would also increase to 35% if the club relegates from the first division (clause 2.5). A further important element of the ERPA is clause 4.1, by which Sporting names Doyen as the exclusive agent (intermediary) of the club for all transfer and loan operations of Sporting players. 

By using the ‘map of deals’ and transfermarkt, we have listed all Sporting and Sporting B players sold after March 2012. These players were:

-          Davud Barral – sold for €2 million to Orduspor on 5 July 2012;

-          Alberto Botía – sold for €3 million to Sevilla FC on 11 August 2012;

-          Miguel de las Cuevas – sold for €1.2 million to CA Osasuna on 1 July 2013;

-          Óscar Guido Trejo – sold for €2.7 million to FC Toulouse on 19 July 2013;

-          Borja López - sold for €2.2 million to AS Monaco on 2 August 2013;

-          Stefan Scepovic - sold for €2.56 million to Celtic FC on 1 September 2014.

A closer look at the ‘map of deals’ shows one important discrepancy compared to the ERPA of 22 March 2012. The share of economic rights owned by Doyen were not 25% (as stipulated in the ERPA), but 45%. Thanks to footballleaks' release of the so-called 'Escritura de Liquidación' on 14 April we now know what caused this increase. Firstly, in accordance with clause 2.5 of the ERPA, the economic rights owned by Doyen of all the Sporting players (except Botía and De las Cuevas) increased to 35%, since Sporting relegated to the second division in May 2012. Secondly, being an intermediary in all of these transfers, Doyen was entitled to an additional 10% of all the income generated from the transfers.[12] The ‘map of deals’ shows that the transfers of Sporting players has so far led to Doyen receiving more than €3.5 million, a profit of about €1.5 million for their €2 million investment. Nonetheless, this figure is still well short of the minimum return Doyen expects to get of €10 million. In other words, should the ERPA still be in force, Sporting is still required to sell more players if it is to meet its obligations towards Doyen.

Table summarizing the analysed ERPA’s signed between Doyen and Spanish clubs


Conclusion

The reason that many Spanish clubs decided to sell economic rights of players to companies like Doyen from about 2011 to 2015 (the year FIFA banned the practice) is relatively straightforward: The financial crisis was heavily felt in Spanish football, with many clubs incapable of paying off high debts owed to the public authorities. Moreover, the difference between the financial and competitive power of Real Madrid and FC Barcelona on the one hand, and all the other clubs on the other was only getting bigger. Not only did competing at national level become close to impossible, even smaller clubs from England were generating more than twice the revenues of Spanish clubs. The chances of being successful at European level were at risk.

Doyen was basically at the right place, at the right time. The ‘small’ Spanish clubs were in desperate need for money, either to compete or simply to survive, and Doyen was willing to give them this money in return for (part of) the economic rights of their football players. From the outside, it looks like a perfect match between club and investment fund. However, was TPO profitable for Spanish football clubs from a competitive and financial perspective?

From a financial perspective, the business is clearly lucrative for Doyen. As can be seen in the table, by investing €19.335 million it so far made a profit of €15.757 million.[13] In other words, an 81.5% profit! The same cannot be said for the clubs. Only the transfers of Barrada from Getafe to Al-Jazira and Kondogbia from Sevilla to AS Monaco were profitable. For all the other ERPAs, it appears that an a posteriori compensation to Doyen was necessary, because the amount obtained through the transfer could not cover the minimum return secured to Doyen in the ERPAs.

The legal discussions on TPO to a large extent focused on whether the practice leads to an unauthorized influence of third parties on the internal governance and policies of a club; and on whether a complete ban is contrary to (EU) competition law. Yet, the aspect that remains underexposed in the author’s opinion is the severe negative financial effect TPO can have on a football club. As we have discussed a couple of months ago in a blog on FC Twente, the financial position of the Dutch club deteriorated after signing the ERPA to such an extent that the club is now in serious danger of disappearing all together.

It is possible, though unlikely, that FC Twente’s downfall was an exception.  However, one should not underestimate Sporting de Gijon’s current financial situation, for example. A closer look at the ‘map of deals’ tells us that in March 2015 Sporting had only paid €250.000 of the €3.5 million it owed Doyen. A total debt of at least €3 million was confirmed in an official joined statement, dated 29 February 2016. The statement further holds that this debt has to be repaid before 2019, but one cannot help thinking that, for a club like Sporting de Gijón, this is easier said than done. Getting the money from future transfers should be complicated if Sporting only partially owns the economic rights of its own players, plus a looming relegation to the second division at the end of this season will not be beneficial either.[14]



[1] More information on the TPO ban can be found in our previous Blogs, such as “Blog Symposium: FIFA’s TPO ban and its compatibility with EU competition law – Introduction”.

[2] The total amount generated for the 2010/11 season was €641, see Mail Online, “Barca and Real consider sharing TV rights to make La Liga more competitive”; The total amount generated for the 2014/15 season was €742.5 million, see Marca, “Así será el reparto del dinero televisivo”.

[3] As of the 2016-17 season, The English Premier League will make €2.1 billion per year, see Mail Online, "Premier League set for £3bn windfall from global TV rights as rival broadcasters slug it out to screen England-based superstars"

[4] More information on the selling of TV rights in football can be found in our previous Blogs, such as “Why the European Commission will not star in the Spanish TV rights Telenovela”.

[5] See: Map of deals and transactions updated until 10 March 2015.

[6] See: Map of deals and transactions updated until 10 March 2015.

[7] Transfermarkt - Josuha Guilavogui.

[8] The original minimum return of €5.5 million set in September 2013 was increased every year by €500.000 until 1 September 2015, since Doyen continued to own 50% of the Guilavogui’s economic rights.

[9] The players concerned were Roberto Canella Suárez, Álvaro Bustos Sandoval, Alejandro Serrano García, Abdou Karim Tima, Mendy Formose, Juan Muñiz Gallego, Sergio Álvarez Díaz, Óscar Guido Trejo and David Barral Torres.

[10] In the first phase, Doyen receives a percentage of 50% of the economic rights of the nine players until Doyen received an amount of €5 million for the transfer of one or more of those players. After Doyen receives its first €5 million, Doyen’s ownership of the economic rights of the remaining players is to be reduced to 40% until Doyen received an additional €1 million. Once Doyen receives this additional €1 million, Doyen’s ownership of the economic rights of the remaining players would be reduced to 30% until Doyen again receives €1 million from the selling of those players. Consequently, the agreement stipulates that Doyen is to receive an amount equal or superior to €7 million for the transfer of players in which it partly owned the economic rights.

[11] As an exception, Doyen only gets 10% of the economic rights of the players Alberto Botía and Miguel de las Cuevas.

[12] Moreover, the 20% of the transfer fee for De las Cuevas that Sporting owed Doyen consisted of 10% for the economic rights and 10% as an agency fee.

[13] This figure might even get higher when taking into account that Doyen had a share in all Sporting de Gijón players and the fact that Pedro León is still registered as a Getafe player.

[14] With seven matches to go, Sporting finds itself in 17th place.

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Asser International Sports Law Blog | New Video! Zoom In on World Anti-Doping Agency v. Russian Anti-Doping Agency - 25 February

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

New Video! Zoom In on World Anti-Doping Agency v. Russian Anti-Doping Agency - 25 February

Dear readers,

If you missed it (or wish to re-watch it), the video of our third Zoom In webinar from 25 February on the CAS award in the World Anti-Doping Agency v. Russian Anti-Doping Agency case is available on the YouTube channel of the Asser Institute:



Stay tuned and watch this space, the announcement for the next Zoom In webinar, which will take place on 31 March, is coming soon!

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Asser International Sports Law Blog | International and European Sports Law – Monthly Report – October 2016. 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

International and European Sports Law – Monthly Report – October 2016. By Kester Mekenkamp.

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
We are looking for an International Sports Law Intern (with a particular interest in the CAS)! More information can be found here.


The (terrible) State of the World Anti-Doping System

The fight against doping is still on top of the agenda after the Russian doping scandal. The national anti-doping organizations (NADOs) have reiterated their call for an in depth reform of the World Anti-Doping Agency at a special summit in Bonn, Germany. These reforms are deemed urgent and necessary to “restore confidence of clean athletes and those who value the integrity of sport” and secure “the public’s desire for a fair and level playing field”. The NADOs propose, amongst others things, to separate the investigatory, testing and results management functions from sports organizations, and to remove sports administrators from crucial anti-doping executive functions. They insist that “no decision maker within an anti-doping organization should hold a board, officer, or other policy-making position within a sport or event organizer”. WADA welcomed the reform proposals and pledged to discuss them at the upcoming meeting of the foundation board. The necessity of such a reform, or at least of improving the effectiveness of the anti-doping system, has been highlighted (again!) by the release of WADA’s Report of the Independent Observers concerning the 2016 Rio Olympic Games. The reports point out that “the logistical arrangements made by Rio 2016 to support the sample collection process at official venues during the Games suffered from a number of serious failings”. These “foreseeable and entirely avoidable” logistical issues resulted in a strained sample collection process. On the way forward to reform WADA you can read some ASSER proposals in a recent policy brief by our Senior Researcher Antoine Duval. 


The Sharapova CAS award

Everything related to Maria Sharapova is necessarily making a lot of noise. Unsurprisingly, the CAS award on her positive doping test to Meldonium has attracted a lot of media attention. The decision in the dispute between Maria Sharapova and the International Tennis Federation (ITF) reduced the period of her suspension by nine months. The Russian tennis star had, during the Australian Open in January 2016, tested positive for the presence of Meldonium. A substance which had, for the first time, been put on WADA’s prohibited list in 2016. Subsequently, Sharapova announced she had been taking Mildronate tablets that had been prescribed by her doctor for many years. As her medical team “had failed to notice” that Meldonium was included on the list of prohibited substances, Sharapova claimed to be unaware that she committed a violation of an anti-doping rule. The CAS Panel shortened the period of ineligibility from the initial period of two years (imposed by the ITF’s judicial body) to fifteen months. It emphasized that the case turned on “the degree of fault that can be imputed to the player for her failure to make sure that the substance contained in a product that she had been taking over a long period remained in compliance with the anti-doping rules”. Given that her ban started on 26 January 2016, Sharapova will already be back in action late spring 2017. This ASSER International Sports Law blog by Marjolaine Viret, triggered by the Sharapova case, tackles the specific questions of the athletes (ir)responsibilities when taking medication. To what extent should they consult experts before taking a medication and to what extent can we assume that they are sufficiently qualified to assess the doping consequences of a specific product. .


The Bundesgerichtshof’s ruling in the SV Wilhelmshaven case

The ruling by Germany’s Highest Civil Court in the SV Wilhelmshaven case challenging FIFA’s training compensation system has been released. The BGH sided with the club but declined to pronounce itself on the compatibility of the FIFA regulations with EU law and on the validity of the original CAS award. The Asser International Sports Law Centre together with the Dutch Federation of Professional Football Clubs (FBO) organized a high-level conference on the case. You can read the conference report here.


New developments regarding State aid in sport

Real Madrid claim to have returned the State aid of €20.3 million it illegally received from the municipality of Madrid through various land transactions. However, the Spanish giants have also underlined that it is seeking annulment of the Commission’s decision at the Court of Justice of the EU, meaning that the saga continues despite the repayment.

The “Real Madrid appeal” has not yet been registered officially with the CJEU, contrary to the appeals launched by Athletic Club de Bilbao and Valencia CF respectively. Bilbao’s appeal concerns the Commission’s conclusion that Spain’s corporate tax system was selectively favourable for the clubs Athletic Club Bilbao, Osasuna, FC Barcelona and Real Madrid CF in comparison to the other clubs in Spain. At this moment it is still unknown whether the other clubs will join the appeal. More information on this State aid decision can be found in the blog written by Oskar van Maren.

In addition to its action for annulment, Valencia CF also launched proceedings for interim measures which aim to suspend the repayment of the aid until the General Court decides in the main proceedings. In parallel, the Spanish public authority responsible for ordering the return of the State aid from Valencia CF, i.e. the government of the autonomous region of Valencia, has asked the Commission to prolong the deadline for the return of the aid. These two requests need to be read in light of Valencia CF’s current financial situation. Its obligation to repay more than €23 million could well mean the bankruptcy of the Champions League finalist of 2000 and 2001.

Our in-house State aid and sport expert, Oskar van Maren, will dissect all the decisions of this year in a special lecture (State aid in Football: The year of the European Commission) on 24 November. 


Just Published! The Yearbook of International Sports Arbitration

Senior Researcher and head of ASSER International Sports Law Centre, Antoine Duval, has just published with CAS expert (and lawyer) Antonio Rigozzi a new Yearbook of International Sports Arbitration (the 2015 edition is available here). This is the first ever academic publication aiming to offer comprehensive coverage, on a yearly basis, of the most recent and salient developments regarding international sports arbitration, through a combination of general articles and case notes.


Case law

CAS

CAS 2016/A/4643 Maria Sharapova v. International Tennis Federation

CAS 2016/O/4684 The Russian Olympic Committee (“ROC”), [Russian Athletes] v. The International Association of Athletics Federations (IAAF)


EU

EU Commission State Aid SA.44439 (2016/N) – Sporting Arena Cork – Ireland


IOC

IOC Disciplinary Commission decision regarding Anna Chicherova

IOC Disciplinary Commission decision regarding Tatyana Lysenko


Wilhelmshaven ruling

Bundesgerichtshof Urteil vom 20. September 2016 - II ZR 25/15 - OLG Bremen LG Bremen


Other

Doyen’s Appeal to FIFA’s TPO ban before Paris court 


Official documents and Press releases

CAS list of hearing November and December

CAS The Court of Arbitration for Sport Reduces the ban of Maria Sharapova to fifteen months

CAS Essendon Case: The appeal filed by 34 players is not entertained by the Swiss Federal Tribunal

CAS The Court of Arbitration for Sport issues decisions in the case of five Russian racewalkers

CAS IAAF appeal upheld – Rita Jeptoo suspended for four years by the Court of Arbitration for Sport

CIES Football Observatory Monthly Report n°18 - October 2016, “Recruitment strategies throughout Europe”

Commentary by the Spanish anti-doping agency AEPSAD on the whereabouts High Court decision (in Spanish)

European Parliament Committee on Culture and Education on an integrated approach to Sport Policy: good governance, accessibility and integrity (2016/2143(INI))

FIFA Several football associations sanctioned after discriminatory and unsporting conduct of fans

FIFA President Infantino provides update on steps taken to improve governance and compliance as well as football development efforts

Spanish FA sanctioned for international transfers of minors

IAAF Ethics Board Statement on preliminary investigations into ‘brown envelope’ rumours surrounding bid for 2017 World Championships

IOC Declaration of the 5th Olympic Summit Protecting clean athletes is an absolute priority for the entire Olympic Movement

NADA-Statement zum 5. Olympic Summit

UK Parliament Culture, Media and Sport Committee, The Governance of Football inquiry

WADA Statement regarding Maria Sharapova CAS decision

WADA statement regarding Olympic Summit

WADA Compliance Review Committee Update

WADA Statement by Richard H. McLaren, Independent Person, Concerning Release of his Investigation Report, Part II

WADA Report of the Independent Observers, Games of the XXXI Olympiad, Rio de Janeiro 2016

WADA statement regarding renewed NADO anti-doping reform proposals 


In the news

Doping

AP, New WADA director general Olivier Niggli anticipates more state-sponsored doping

Nick Butler, Exclusive: IOC Medical Commission chair calls for more Government funding for WADA

Nick Butler, WADA report is microcosm of everything wrong with Rio 2016 and IOC

Causa Sport, „Fall Scharapowa“: Unachtsamkeit schützt vor (Doping-)Strafe

George Georgakopoulos, Greece lags in doping tests and would need assistance

David Millar, How to Get Away With Doping

Michael Pavitt, New testing authority within WADA proposed at Olympic Summit

Sport Leaks and Doping Leaks

Luis Torres Montero, Claves de la reducción de la sanción a Sharapova: análisis del reciente laudo del TAS

Jonathan Sachse and Daniel Drepper, Wie VfB Stuttgart und SC Freiburg Doping organisierten

Thorhild Widvey, WADA Must Be Reinforced and Publicly Supported 


Football

Vivek Chaudhary, FIFA's Gianni Infantino may face Ethics Committee investigation

Willem Feenstra, FIFA charged with complicity in human rights violations Qatar

Keir Radnedge, Infantino talks a good game about Fifa reform, but can he deliver?

Mike Ticher, Human error is part of football and video refereeing will solve nothing  


Ice Skating

Ernst Bouwes, De internationale sportweek van S&S: EU geeft schaatsers gelijk in 'Ice-derby'-zaak

Causa Sport, Kartellverfahren gegen den internationalen Eislaufverband ISU: Das „Ein-Platz-Prinzip“ vor dem Aus? 


Other

Brittany Bronson, Politicians Place a Bet on a Stadium, and Vegas Pays for It

Juliet Macur, Long Before Kaepernick, There Was Navratilova

Rebecca Ruiz, Russia Sports Minister Promoted to Deputy Prime Minister 


Academic materials

Antoine Duval, Tackling Doping Seriously - Reforming the World Anti-Doping System after the Russian Scandal

Despina Mavromati, Application of the 2015 WADA Code through the Example of a recent CAS Award (Sharapova v. ITF)

Despina Mavromati, The Role of the Swiss Federal Tribunal and Its Impact on the Court of Arbitration for Sport (CAS)

Mordehai Mironi, The promise of mediation in sport-related disputes

Michal Radvan and Jan Neckář, Taxation of Professional Team Sport Athletes in the Czech Republic


Books

Antoine Duval and Antonio Rigozzi, Yearbook of International Sports Arbitration 2015 


Blogs

Richard Bush, Best practice for Sports Governing Bodies when dealing with individual complainants: Part 1 - Internal procedure and Part 2 - Guidelines for legal teams

Sean Cottrell and Mark Hovell, Life as a CAS arbitrator at the Rio Olympic Games

Sean Cottrell, Protecting the integrity of the Rugby World Cup - Ben Rutherford, Senior Legal Counsel and Integrity Unit Manager at World Rugby

Sean Cottrell, Nick De Marco, Nick Tsatsas and Richard Berry, How does the transfer market influence the integrity of football?

Nick De Marco, “Football for Sale” - What is the problem, and what are the solutions?

Antoine Duval and Kester Mekenkamp, De- or Re-regulating the middlemen? The DFB’s regulation of intermediaries under EU law scrutiny at the OLG Frankfurt

Jon Elphick, How athletes will be affected by the UK’s changes to “non-dom” tax rules

Alex Haffner and Krish Mistry, The law on banning athletes from competing in rival sports leagues

Philip Hutchinson, Who shoulders the blame? An analysis of vicarious liability in the sports industry

Interpol Integrity in Sport Bi-Weekly Bulletin - 3-16 October 2016 and 17-31 October 2016

Christian Keidel and Alexander Engelhard, How the Bundesliga’s new “no single buyer” rule has increased the broadcasting revenue for German football

Saurabh Mishra, Important lessons for athletes on doping sabotage: A review of WADA v. Narsingh Yadav

Laura McCallum, An overview of key case law relating to negligent liability for sports injuries (Part 1) and (Part 2)

Alice McDonald, Footballers facing tax fines: who is responsible for inaccurate tax returns?

Marine Montejo, Case note: TAS 2016/A/4474 Michel Platini c. Fédération Internationale de Football Association

Michael Rueda, What is next for NCAA student-athletes? From O'Bannon onto Jenkins

Ralph Russo, Although NCAA loses its appeal, future still hazy

Luke Sayer, Possible ways the Therapeutic Use Exemptions system can be improved to prevent abuse

Zane Shihab and Nick Bitel, What effects have FIFA’s Intermediaries Regulations had on player representation and commission levels?

The Swiss Ramble, Arsenal - New Sensation

The Swiss Ramble, Borussia Dortmund - The Sound Of The Crowd

The Swiss Ramble, Manchester City - My Aim Is True

The Swiss Ramble, Stoke City - But I'm Different Now

Oskar van Maren, Case note: State aid Decision on the preferential corporate tax treatment of Real Madrid, Athletic Bilbao, Osasuna and FC Barcelona

Ben Van Rompuy, What can EU competition law do for speed skaters?

Marjolaine Viret , Taking the Blue Pill or the Red Pill: Should Athletes Really Check their Medications against the Prohibited List Personally? 


Upcoming events

18 November - Football Law Conference and Sportspersons’ Dinner, St John’s Buildings Barristers’ Chambers and the Centre for Sports Law Research at Edge Hill University, Stretford, UK

24 November – Sports Law Lecture “State aid in Football: The year of the European Commission”, T.M.C. Asser Instituut, The Hague, the Netherlands

8 December - Actualiteitencursus Internationaal Sportrecht, De Kempenaer Advocaten, Arnhem, the Netherlands


 


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Asser International Sports Law Blog | International and European Sports Law – Monthly Report – April and May 2019. 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

International and European Sports Law – Monthly Report – April and May 2019. By Tomáš Grell

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 

Caster Semenya learns that it is not always easy for victims of discrimination to prevail in court

The world of sport held its breath as the Secretary General of the Court of Arbitration for Sport (CAS) Matthieu Reeb stood before the microphones on 1 May 2019 to announce the verdict reached by three arbitrators (one of them dissenting) in the landmark case involving the South African Olympic and world champion Caster Semenya. Somewhat surprisingly, the panel of arbitrators came to the conclusion that the IAAF’s regulations requiring female athletes with differences of sexual development to reduce their natural testosterone level below the limit of 5 nmol/L and maintain that reduced level for a continuous period of at least six months in order to be eligible to compete internationally at events between 400 metres and a mile, were necessary, reasonable and proportionate to attain the legitimate aim of ensuring fair competition in female athletics, even though the panel recognised that the regulations were clearly discriminatory. Ms Semenya’s legal team decided to file an appeal against the ruling at the Swiss Federal Tribunal. For the time being, this appears to be a good move since the tribunal ordered the IAAF at the beginning of June to suspend the application of the challenged regulations to Ms Semenya with immediate effect, which means that Ms Semenya for now continues to run medication-free.

 

Champions League ban looms on Manchester City

On 18 May 2019, Manchester City completed a historic domestic treble after defeating Watford 6-0 in the FA Cup Final. And yet there is a good reason to believe that the club’s executives did not celebrate as much as they would under normal circumstances. This is because only two days before the FA Cup Final the news broke that the chief investigator of the UEFA Club Financial Control Body (CFCB) had decided to refer Manchester City’s case concerning allegations of financial fair play irregularities to the CFCB adjudicatory chamber for a final decision. Thus, the chief investigator most likely found that Manchester City had indeed misled UEFA over the real value of its sponsorship income from the state-owned airline Etihad and other companies based in Abu Dhabi, as the leaked internal emails and other documents published by the German magazine Der Spiegel suggested. The chief investigator is also thought to have recommended that a ban on participation in the Champions League for at least one season be imposed on the English club. The club’s representatives responded to the news with fury and disbelief, insisting that the CFCB investigatory chamber had failed to take into account a comprehensive body of irrefutable evidence it had been provided with. They eventually decided not to wait for the decision of the CFCB adjudicatory chamber, which is yet to be adopted, and meanwhile took the case to the CAS, filing an appeal against the chief investigator’s referral.

 

The Brussels Court of Appeal dismisses Striani’s appeal on jurisdictional grounds

The player agent Daniele Striani failed to convince the Brussels Court of Appeal that it had jurisdiction to entertain his case targeting UEFA’s financial fair play regulations. On 11 April 2019, the respective court dismissed his appeal against the judgment of the first-instance court without pronouncing itself on the question of compatibility of UEFA’s financial fair play regulations with EU law. The court held that it was not competent to hear the case because the link between the regulations and their effect on Mr Striani as a player agent, as well as the link between the regulations and the role of the Royal Belgian Football Association in their adoption and enforcement, was too remote (for a more detailed analysis of the decision, see Antoine’s blog here). The Brussels Court of Appeal thus joined the European Court of Justice and the European Commission as both these institutions had likewise rejected to assess the case on its merits in the past.

 

Sports Law Related Decisions

 

Official Documents and Press Releases

CAS

FIFA

IOC

UEFA

WADA

Other


In the news

Doping

Football

Other

 

Academic Materials

Books

International Sports Law Journal

Other


Blog

Asser International Sports Law Blog

Law in Sport

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