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

Never let a good fiasco go to waste: why and how the governance of European football should be reformed after the demise of the ‘SuperLeague’ - By Stephen Weatherill

Editor’s note: Stephen Weatherill is the Jacques Delors Professor of European Law at Oxford University. He also serves as Deputy Director for European Law in the Institute of European and Comparative Law, and is a Fellow of Somerville College. This blog appeared first on eulawanalysis.blogspot.com and is reproduced here with the agreement of the author. 

 


The crumbling of the ‘SuperLeague’ is a source of joy to many football fans, but the very fact that such an idea could be advanced reveals something troublingly weak about the internal governance of football in Europe – UEFA’s most of all – and about the inadequacies of legal regulation practised by the EU and/ or by states. This note explains why a SuperLeague is difficult to stop under the current pattern of legal regulation and why accordingly reform is required in order to defend the European model of sport with more muscularity. More...



New Digital Masterclass - Mastering the FIFA Transfer System - 29-30 April

The mercato, or transfer window, is for some the most exciting time in the life of a football fan. During this narrow period each summer and winter (for the Europeans), fantastic football teams are made or taken apart. What is less often known, or grasped is that behind the breaking news of the latest move to or from your favourite club lies a complex web of transnational rules, institutions and practices.

Our new intensive two-day Masterclass aims to provide a comprehensive understanding of the FIFA Regulations on the Status and Transfer of Players (RSTP) to a small group of dedicated legal professionals who have the ambition to advise football clubs, represent players or join football governing bodies. The course combines theoretical insights on FIFA’s regulation of the transfer market with practical know-how of the actual operation of the RSTP distilled by hands-on practitioners.

Download the full Programme and register HERE.


The Team:

  • Dr Antoine Duval is a senior researcher at the Asser Institute and the head of the Asser International Sports Law Centre. He has widely published and lectured on transnational sports law, sports arbitration and the interaction between EU law and sport. He is an avid football fan and football player and looks forward to walking you through the intricacies of the FIFA transfer system.

  • Carol Couse is a Partner in the sports team at Mills & Reeve LLP , with extensive in-house and in private practice experience of dealing with sports regulatory matters, whether contentious or non-contentious.  She has advised on many multi million pound international football transfer agreements, playing contracts and image rights agreements on behalf clubs, players and agents.
  • Jacques Blondin is an Italian lawyer, who joined FIFA inundefined 2015, working for the Disciplinary Department. In 2019, he was appointed Head of FIFA TMS (now called FIFA Regulatory Enforcement) where he is responsible, among other things, for ensuring compliance in international transfers within the FIFA Transfer Matching System.
  • Oskar van Maren joined FIFA as a Legal Counsel in December 2017, forming part of the Knowledge Management Hub, a department created in September 2020. Previously, he worked for FIFA’s Players' Status Department. Between April 2014 and March 2017, he worked as a Junior Researcher at the T.M.C. Asser Instituut. He holds an LL.M in European law from Leiden University (The Netherlands).
  • Rhys Lenarduzzi is currently a research intern at the Asser International Sports Law Centre, where he focuses in particular on the transnational regulation of football. Prior to this, he acquired over 5 years of experience as a sports agent and consultant, at times representing over 50 professional athletes around the world from various sports, though predominantly football.




(A)Political Games? Ubiquitous Nationalism and the IOC’s Hypocrisy

Editor’s note: Thomas Terraz is a L.LM. candidate in the European Law programme at Utrecht University and a former intern of the Asser International Sports Law Centre

 

1.     Sport Nationalism is Politics

Despite all efforts, the Olympic Games has been and will be immersed in politics. Attempts to shield the Games from social and political realities are almost sure to miss their mark and potentially risk being disproportionate. Moreover, history has laid bare the shortcomings of the attempts to create a sanitized and impenetrable bubble around the Games. The first blog of this series examined the idea of the Games as a sanitized space and dived into the history of political neutrality within the Olympic Movement to unravel the irony that while the IOC aims to keep the Olympic Games ‘clean’ of any politics within its ‘sacred enclosure’, the IOC and the Games itself are largely enveloped in politics. Politics seep into the cracks of this ‘sanitized’ space through: (1) public protests (and their suppression by authoritarian regimes hosting the Games), (2) athletes who use their public image to take a political stand, (3) the IOC who takes decisions on recognizing national Olympic Committees (NOCs) and awarding the Games to countries,[1] and (4) states that use the Games for geo-political posturing.[2] With this background in mind, the aim now is to illustrate the disparity between the IOC’s stance on political neutrality when it concerns athlete protest versus sport nationalism, which also is a form of politics.

As was mentioned in part one of this series, the very first explicit mention of politics in the Olympic Charter was in its 1946 version and aimed to combat ‘the nationalization of sports for political aims’ by preventing ‘a national exultation of success achieved rather than the realization of the common and harmonious objective which is the essential Olympic law’ (emphasis added). This sentiment was further echoed some years later by Avery Brundage (IOC President (1952-1972)) when he declared: ‘The Games are not, and must not become, a contest between nations, which would be entirely contrary to the spirit of the Olympic Movement and would surely lead to disaster’.[3] Regardless of this vision to prevent sport nationalism engulfing the Games and its codification in the Olympic Charter, the current reality paints quite a different picture. One simply has to look at the mass obsession with medal tables during the Olympic Games and its amplification not only by the media but even by members of the Olympic Movement.[4] This is further exacerbated when the achievements of athletes are used for domestic political gain[5] or when they are used to glorify a nation’s prowess on the global stage or to stir nationalism within a populace[6]. Sport nationalism is politics. Arguably, even the worship of national imagery during the Games from the opening ceremony to the medal ceremonies cannot be depoliticized.[7] In many ways, the IOC has turned a blind eye to the politics rooted in these expressions of sport nationalism and instead has focused its energy to sterilize its Olympic spaces and stifle political expression from athletes. One of the ways the IOC has ignored sport nationalism is through its tacit acceptance of medal tables although they are expressly banned by the Olympic Charter.

At this point, the rules restricting athletes’ political protest and those concerning sport nationalism, particularly in terms of medal tables, will be scrutinized in order to highlight the enforcement gap between the two. More...


“Sport Sex” before the European Court of Human Rights - Caster Semenya v. Switzerland - By Michele Krech

Editor's note: Michele Krech is a JSD Candidate and SSHRC Doctoral Fellow at NYU School of Law. She was retained as a consultant by counsel for Caster Semenya in the proceedings before the Court of Arbitration for Sport discussed above. She also contributed to two reports mentioned in this blog post: the Report of UN High Commissioner for Human Rights,  Intersection of race and gender discrimination in sport (June 2020); and the Human Rights Watch Report, “They’re Chasing Us Away from Sport”: Human Rights Violations in Sex Testing of Elite Women Athletes (December 2020).

This blog was first published by the Völkerrechtsblog and is republished here with authorization. Michele Krech will be joining our next Zoom In webinar on 31 March to discuss the next steps in the Caster Semenya case.



Sport is the field par excellence in which discrimination
against intersex people has been made most visible.

Commissioner for Human Rights, Council of Europe
Issue Paper: Human rights and intersex people (2015)


Olympic and world champion athlete Caster Semenya is asking the European Court of Human Rights (ECtHR) to make sure all women athletes are “allowed to run free, for once and for all”. Semenya brings her application against Switzerland, which has allowed a private sport association and a private sport court to decide – with only the most minimal appellate review by a national judicial authority – what it takes for women, legally and socially identified as such all their lives, to count as women in the context of athletics. I consider how Semenya’s application might bring human rights, sex, and sport into conversation in ways not yet seen in a judicial forum. More...







New Event - Zoom In - Caster Semenya v. International Association of Athletics Federations - 31 March - 16.00-17.30 CET

On Wednesday 31 March 2021 from 16.00-17.30 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret (University of Lausanne), is organising its fourth Zoom In webinar on the recent developments arising from the decision of the Swiss Federal Tribunal (SFT) in the case Caster Semenya v. International Association of Athletics Federations (now World Athletics), delivered on 25 August 2020.


Background
The participation of athletes with biological sex differences to international competitions is one of the most controversial issues in transnational sports law. In particular, since 2019, Caster Semenya, an Olympic champion from South-Africa has been challenging the World Athletics eligibility rules for Athletes with Differences of Sex Development (DSD Regulation), which would currently bar her from accessing international competitions (such as the Tokyo Olympics) unless she accepts to undergo medical treatment aimed at reducing her testosterone levels. In April 2019, the Court of Arbitration for Sport rejected her challenge against the DSD Regulation in a lengthy award. In response, Caster Semenya and the South African Athletics Federation filed an application to set aside the award before the Swiss Federal Tribunal. In August 2020, the SFT released its decision rejecting Semenya’s challenge of the award (for an extensive commentary of the ruling see Marjolaine Viret’s article on the Asser International Sports Law Blog).

Recently, on 25 February 2021, Caster Semenya announced her decision to lodge an application at the European Court of Human Rights (ECtHR) against Switzerland on the basis of this judgment. In this context, we thought it important to organise a Zoom In webinar around the decision of the SFT and the pending case before the ECtHR. Indeed, should the ECtHR accept the case, it will be in a position to provide a definitive assessment of the human rights compatibility of the DSD Regulation. Moreover, this decision could have important consequences on the role played by human rights in the review of the private regulations and decisions of international sports governing bodies.


Speakers


Participation is free, register HERE.

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!

A Reflection on Recent Human Rights Efforts of National Football Associations - By Daniela Heerdt (Tilburg University)

Editor's Note: Daniela Heerdt is a PhD researcher at Tilburg Law School in the Netherlands. Her PhD research deals with the establishment of responsibility and accountability for adverse human rights impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic Games. She published a number of articles on mega-sporting events and human rights, in the International Sports Law Journal, Tilburg Law Review, and the Netherlands Quarterly of Human Rights.

 

In the past couple of years, the Fédération Internationale de Football Association (FIFA) made remarkable steps towards embedding human rights into their practices and policies. These developments have been discussed at length and in detail in this blog and elsewhere, but a short overview at this point is necessary to set the scene. Arguably, most changes were sparked by John Ruggie’s report from 2016, in which he articulated a set of concrete recommendations for FIFA “on what it means for FIFA to embed respect for human rights across its global operations”, using the UN Guiding Principles on Business and Human Rights (UNGPs) as authoritative standard.[i] As a result, in May 2017, FIFA published a human rights policy, in which it commits to respecting human rights in accordance with the UNGPs, identifies its salient human rights risks, and acknowledges the potential adverse impacts it can have on human rights in general and human rights of people belonging to specific groups. In October 2017, it adopted new bidding regulations requiring bidders to develop a human rights strategy and conduct an independent human rights risk assessment as part of their bid. In March 2017, FIFA also created a Human Rights Advisory Board, which regularly evaluated FIFA’s human rights progress and made recommendations on how FIFA should address human rights issues linked to its activities. The mandate of the Advisory Board expired at the end of last year and the future of this body is unknown at this point.

While some of these steps can be directly connected to the recommendations in the Ruggie report, other recommendations have largely been ignored. One example of the latter and focus of this blog post is the issue of embedding human rights at the level of national football associations. It outlines recent steps taken by the German football association “Deutscher Fussball-Bund” (DFB) and the Dutch football association “Koninklijke Nederlandse Voetbalbond” (KNVB) in relation to human rights, and explores to what extent these steps can be regarded as proactive moves by those associations or rather spillover effects from FIFA’s human rights efforts. More...

New Event! Zoom In on World Anti-Doping Agency v. Russian Anti-Doping Agency - 25 February - 16:00-17:30 CET

On Thursday 25 February 2021 from 16.00-17.30 CET, the Asser International Sports Law Centre, in collaboration with Dr Marjolaine Viret (University of Lausanne), organizes a Zoom In webinar on the recent award of the Court of Arbitration for Sport (CAS) in the case World Anti-Doping Agency (WADA) v. Russian Anti-Doping Agency (RUSADA), delivered on 17 December 2020.


Background
In its 186 pages decision the CAS concluded that RUSADA was non-compliant with the World Anti-Doping Code (WADC) in connection with its failure to procure the delivery of the authentic LIMS data (Laboratory Information Management System) and underlying analytical data of the former Moscow Laboratory to WADA. However, the CAS panel did not endorse the entire range of measures sought by WADA to sanction this non-compliance. It also reduced the time frame of their application from four to two years. The award has been subjected to a lot of public attention and criticisms, and some have expressed the view that Russia benefited from a lenient treatment.   

This edition of our Zoom in webinars will focus on assessing the impact of the award on the world anti-doping system. More specifically, we will touch upon the decision’s effect on the capacity of WADA to police institutionalized doping systems put in place by certain states, the ruling’s regard for the rights of athletes (Russian or not), and its effect on the credibility of the world anti-doping system in the eyes of the general public.


To discuss the case with us, we are very happy to welcome the following speakers:


Participation is free, register HERE.

Revisiting FIFA’s Training Compensation and Solidarity Mechanism - Part. 5: Rethinking Redistribution in Football - By Rhys Lenarduzzi

Editor’s note: Rhys Lenarduzzi recently completed a Bachelor of Law (LL.B) and Bachelor of Philosophy (B.Phil.) at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.

 

As one may have gathered from the series thus far, the question that comes out of this endeavour for me, is whether redistribution in football would be better divorced from the transfer system?

In my introductory blog I point towards historical, cultural, and of course the legal explanations as to why redistribution was established, and why it might be held onto despite obvious flaws. In my second blog, I point out how the training compensation and solidarity mechanisms work in practice through an African case study, as well as the hindrance caused and the Eurocentricity of the regulations. The key take-away from my third blog on the non-application of training compensation in women’s football might be that training compensation should apply to both men’s and women’s football, or neither. The sweeping generalisation that men’s and women’s football are different as justification for the non-application to the women’s game is not palatable, given inter alia the difference between the richest and poorest clubs in men’s football. Nor is it palatable that the training compensation mechanism is justified in men’s football to incentivise training, yet not in women’s football.

In the fourth blog of this series, I raise concerns that the establishment of the Clearing House prolongs the arrival of a preferable alternative system. The feature of this final blog is to consider alternatives to the current systems. This endeavour is manifestly two-fold; firstly, are there alternatives? Secondly, are they better?  More...


Revisiting FIFA’s Training Compensation and Solidarity Mechanism - Part. 4: The New FIFA Clearing House – An improvement to FIFA’s training compensation and solidarity mechanisms? - By Rhys Lenarduzzi

Editor’s note: Rhys Lenarduzzi recently completed a Bachelor of Law (LL.B) and a Bachelor of Philosophy (B.Phil.) at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.

In September 2018, the Football Stakeholders Committee endorsed the idea of a Clearing House that was subsequently approved in October of the same year by the FIFA Council. A tender process commenced in July 2019 for bidders to propose jurisdiction, operation and establishment. Whilst many questions go unanswered, it is clear that the Clearing House will be aimed at closing the significant gap between what is owed and what is actually paid, in respect to training compensation and solidarity payments. The Clearing House will have other functions, perhaps in regard to agents’ fees and other transfer related business, though those other operations are for another blog. It will hence act as an intermediary of sorts, receiving funds from a signing and therefore owing club (“new” club) and then moving that money on to training clubs. Whilst separate to FIFA, to what extent is unclear.

I have landed at the position of it being important to include a section in this blog series on the soon to commence Clearing House, given it appears to be FIFA’s (perhaps main) attempt to improve the training compensation and solidarity mechanisms. As will be expanded upon below, I fear it will create more issues than it will solve. Perhaps one should remain patient and optimistic until it is in operation, and one should be charitable in that there will undoubtedly be teething problems. However, it is of course not just the function of the Clearing House that is of interest, but also what moving forward with the project of the Clearing House represents and leaves unaddressed, namely, the issues I have identified in this blog series. More...

Asser International Sports Law Blog | A Reflection on Recent Human Rights Efforts of National Football Associations - By Daniela Heerdt (Tilburg University)

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

A Reflection on Recent Human Rights Efforts of National Football Associations - By Daniela Heerdt (Tilburg University)

Editor's Note: Daniela Heerdt is a PhD researcher at Tilburg Law School in the Netherlands. Her PhD research deals with the establishment of responsibility and accountability for adverse human rights impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic Games. She published a number of articles on mega-sporting events and human rights, in the International Sports Law Journal, Tilburg Law Review, and the Netherlands Quarterly of Human Rights.

 

In the past couple of years, the Fédération Internationale de Football Association (FIFA) made remarkable steps towards embedding human rights into their practices and policies. These developments have been discussed at length and in detail in this blog and elsewhere, but a short overview at this point is necessary to set the scene. Arguably, most changes were sparked by John Ruggie’s report from 2016, in which he articulated a set of concrete recommendations for FIFA “on what it means for FIFA to embed respect for human rights across its global operations”, using the UN Guiding Principles on Business and Human Rights (UNGPs) as authoritative standard.[i] As a result, in May 2017, FIFA published a human rights policy, in which it commits to respecting human rights in accordance with the UNGPs, identifies its salient human rights risks, and acknowledges the potential adverse impacts it can have on human rights in general and human rights of people belonging to specific groups. In October 2017, it adopted new bidding regulations requiring bidders to develop a human rights strategy and conduct an independent human rights risk assessment as part of their bid. In March 2017, FIFA also created a Human Rights Advisory Board, which regularly evaluated FIFA’s human rights progress and made recommendations on how FIFA should address human rights issues linked to its activities. The mandate of the Advisory Board expired at the end of last year and the future of this body is unknown at this point.

While some of these steps can be directly connected to the recommendations in the Ruggie report, other recommendations have largely been ignored. One example of the latter and focus of this blog post is the issue of embedding human rights at the level of national football associations. It outlines recent steps taken by the German football association “Deutscher Fussball-Bund” (DFB) and the Dutch football association “Koninklijke Nederlandse Voetbalbond” (KNVB) in relation to human rights, and explores to what extent these steps can be regarded as proactive moves by those associations or rather spillover effects from FIFA’s human rights efforts.

The DFB

Since 2017, DFB runs a working group on the association’s human rights concept. This was triggered by DFB’s application to host the EURO 2024 and the social programs around the 2018 World Cup. In particular, the required human rights strategy for the EURO 2024 application led DFB to adopt a statutory commitment to human rights in 2019. Paragraph 2 of DFB’s Statutes read as follows:

“The DFB takes responsibility for respecting all internationally-recognized human rights and promotes the respect for these rights. It strictly opposes unconstitutional behaviour as well as any form of discriminatory or inhuman attitudes and behaviours. This applies to every form of violence, irrespective of it being of physical or mental nature. The DFB commits in particular to the protection of children and youth from sexual abuse”.[ii]

The human rights strategy for the 2024 tournament has been developed through engaging a variety of stakeholders, including the German Human Rights Institute, the German Olympic Committee and a range of civil society organizations representing the rights of children or fans amongst others. According to the DFB and some of these stakeholders, the strategy builds on and streamlines existing initiatives regarding corporate social responsibility and youth work. The DFB claims that human rights have been part of the DFB’s national and international activities for years, although not framed within recognized human rights standards. Since 2010, its Ethics Code enshrines values such as respect, diversity, integrity, transparency and solidarity in football. Moreover, it promotes projects on participation, integration, fair play, diverse fan cultures, and the prevention of violence and promotion of equality both at grass-roots and elite level sports. This certainly provides a good vantage point for DFB’s human rights efforts. Currently, the DFB is finalizing its human rights policy, and in the meantime, a number of smaller initiative were taken, such as the organization of hearings on the issue of political statements of players in 2020.

The KNVB

Last month, the KNVB announced its support for the adoption of a sport and human rights covenant, similar to the existing agreements on international responsible business conduct. In its announcement, it acknowledges the unique position of sports to promote human rights and highlights the need to use this power also in the context of international tournaments. According to the KNVB, such a covenant would advance collaboration with governments in host countries and help to address issues, promote dialogue and investigation, facilitate the exchange of knowledge and information, and create a level-playing field. Moreover, the KNVB claims that it can help to foster sustainable positive change regarding the human rights situation in host countries and provide players and associations with a responsible manner to participate in international tournaments.

KNVB’s call for a covenant has not been without criticism. Amnesty Netherlands explicitly voiced their concerns regarding the initiative on twitter, welcoming the efforts of KNVB to look at the human rights situation in Qatar in more detail, but opposing the creation of a covenant, for the reason that it would not provide any remedy to migrant workers in Qatar. The hazardous and inhuman working conditions on World Cup-related construction sites have been documented extensively, including in a recent study conducted by Amnesty Netherlands. These reports show that despite legislative changes to Qatar’s labour law, changes on the ground are lacking and additional human rights issues related to the 2022 World Cup, such as the protection of LGBTQI fans remain largely unaddressed. While the KNVB published its point of views on a World Cup in Qatar together with a list of initiatives regarding the tournament, these points and measures are rather broad and do not explicitly address existing human rights risks. An exception is an event planned for this year on human rights and sport events hosted together with the Dutch House of Representatives.

In addition to KNVB’s recent decision to adopt a sport and human rights covenant, a number of existing KNVB initiatives are worth highlighting from a human rights perspective. For instance, the KNVB was one of the football associations pushing FIFA to integrate human rights requirements into bidding regulations for international tournaments. Other examples relate more to the day-to-day business of football, rather than events, such as KNVB’s efforts on promoting diversity and countering racism and other forms of discrimination within the world of Dutch football. While these efforts are clearly linked to human rights standards, they are not framed in a human rights language, nor streamlined under a commitment to human rights.

FIFA’s ‘trickle down effect’ or civil society pressure?

On a global scale, the DFB and KNVB might be the pioneers of national football associations starting concrete efforts to embed human rights into their policies and practices. Clearly, the DFB is a couple of steps ahead of the KNVB, but both associations are committed to in particular addressing human rights issues in host countries of football tournaments. Furthermore, both draw inspiration from the broader business and human rights movement and explicitly reference the respective National Action Plans on business and human rights, which are policy documents adopted by the governments to implement the UNGPs. However, it becomes clear that through focusing on human rights risks related to host countries of international tournaments, the KNVB only reacts to a fraction of the actual human rights risks involved in the world of football.

Nevertheless, both associations are making a start and in order to find ways for encouraging other national football associations to follow suit, it is essential to understand what triggered these recent initiatives and changes. Arguably, there are two possible explanations. The first is that FIFA’s human rights efforts begin to have a trickle down-effect. The need for this has been stressed by Ruggie in his 2016 report. He recommends FIFA to adopt a human rights policy that applies to its relationships with its member associations (Recommendation 1.1) and advises FIFA to use its annual member associations’ conferences to raise awareness on human rights responsibilities of national football associations (Recommendation 4.5). Moreover, he recommends that “FIFA should ensure that the human rights commitment in Article 3 of the FIFA Statutes is mirrored in the requirements of the Standard Statutes for member associations, and is also extended to the requirements for confederations’ statutes at the earliest opportunity” (Recommendation 1.3). While FIFA has not yet adapted the Standard Statutes for member associations, DFB nevertheless decided to mirror FIFA’s statutory human rights commitment in its own Statutes. In fact, when presenting its human rights efforts on its website, the DFB explicitly refers to FIFA’s human rights policy and human rights-related regulations of UEFA.

The second explanation concerns the increasing pressure from civil society in both countries, due to the 2022 World Cup coming closer, but also due to the rise of reports on cases of abuse in the world of football in the past years. In particular the cases of mental, physical, and sexual abuse of female football players on the national team of Afghanistan & Haiti made international headlines, as well as the recent revelations of cases of sexual abuse of young football players in clubs in the United Kingdom in the 1970s. While these types of abuses where not explicitly addressed in Ruggie’s report, it does identify gender discrimination as “endemic human rights challenge” for the world of association football.[iii] Pressure on national football associations arguably also increased through national and regional regulation. Both associations seem to acknowledge the parallels to the broader business and human rights movement, which currently sees a trend of mandatory due diligence laws on national and regional levels. The fact that football is big business, both on a day-to-day basis and when big tournaments are happening is uncontested. Therefore, there is no doubt that the UNGPs’ corporate responsibility to respect human rights applies to national football associations and that the UNGPs provide a good starting point and framework for national football associations to understand and implement their human rights responsibilities.

Conclusion

Obviously, these two explanations are not mutually exclusive and FIFA’s human rights journey plays an important role in the efforts taken by the DFB and the KNVB. Moreover, the importance of Ruggie’s report in 2016 cannot be underestimated. Nevertheless, it seems like some of these recent human rights efforts by national football associations are rather reactive than proactive, following FIFA’s lead and the pressure by civil society on the world of sports more generally. As long as the result would be the same, it should not matter much. That, however, is questionable when it comes to sport and human rights. Reacting to specific issues when they arise can result in a piece-meal approach that might not only be more labour intensive but more importantly is likely to overlook a range of human rights risks related to the world of football and sports more generally. Therefore, a comprehensive approach is key to understanding the human rights risks involved and identifying ways to address these risks.[iv]

The hope is that DFB’s and KNVB’s efforts will develop further and eventually ensure that human rights are fully embedded and respected in the world of (national) football. Very concretely, these efforts can have great potential for the joint bid of these two countries together with Belgium for the 2027 Women’s World Cup, which provides a good opportunity for knowledge exchange between those associations on their human rights efforts.


[i] John G Ruggie, ‘“For the Game. For the World.” - FIFA and Human Rights’ (2016) 4

[ii] Translated by the author. See original source here.

[iii] John G Ruggie, ‘“For the Game. For the World.” - FIFA and Human Rights’ (2016) 24

[iv] Sally Engle Merry, The Seductions of Quantification: Measuring Human Rights, Gender Violence, and Sex Trafficking (The University of Chicago Press 2016) 46; Daniela Heerdt & Nadia Bernaz, Football and Women’s Rights: the Case for Indicators for FIFA’s Feminist Transformation (2020) 34, Jean Monnet Working Paper 5/20.

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Asser International Sports Law Blog | International transfers of minors: The sword of Damocles over FC Barcelona’s head? by Giandonato Marino and Oskar van Maren

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 transfers of minors: The sword of Damocles over FC Barcelona’s head? by Giandonato Marino and Oskar van Maren

In the same week that saw Europe’s best eight teams compete in the Champions League quarter finals, one of its competitors received such a severe disciplinary sanction by FIFA that it could see its status as one of the world’s top teams jeopardized. FC Barcelona, a club that owes its success both at a national and international level for a large part to its outstanding youth academy, La Masia, got to FIFA’s attention for breaching FIFA Regulations on international transfers of minors.  Unfortunately, at the moment FIFA has not published the decision of the Disciplinary Committee on this case, therefore our analysis is mainly based on the two official statements of FIFA and FC Barcelona.

When FC Barcelona signed the 13 years-old South Korean Lee Sung Woo, in 2011, they thought they found the “new Lionel Messi”. Little did they know that this under-aged Korean football player was to be one of the sources of the legal trouble they are in now. On 5 february, 2013, the Club received the request from FIFA via the Spanish Football Federation (RFEF) to provide information concerning the registration of Lee. Over the course of 2013, FIFA further asked FC Barcelona for additional information on other players. By December 2013, FC Barcelona provided FIFA information on a total of 37 minors.

According to FIFA’s official statement FC Barcelona has been found to be in breach of art.19 of the Regulations on the Status and Transfer of Players (hereinafter “the Regulations”). In this regard, special attention was focused on ten minors signed between the years 2009 and 2013, including the abovementioned Lee. According to article 19 of the Regulations, international transfers of players are only permitted if the player is over the age of 18, or 16 if the player is transferred within the territory of the European Union[1]. Also according to FIFA, the RFEF has been found to have breached the same article 19 of the Regulations in the context of the transfer and registration of certain minor players. Indeed, the Regulations oblige the National Federations to enforce these provisions on national football clubs.

For a normal international transfer procedure, the Regulations impose to clubs and Federations the use of the web-based Transfer Matching System (hereinafter “the TMS”) since 2009.  The TMS ensures that all international transfers are conducted in line with the FIFA rules, thereby controlling the integrity of both clubs and Federations involved. In other words, the club willing to register a new player informs its National Federation of the transfer, who in turn informs TMS, in order for the new player to be registered in his new Federation. As regards the case at hands, the exact details of the used procedure are unknown. However, one could suspect that FC Barcelona deviated from the “usual” procedure and decided to register the minors with the Catalan Federation instead. This means that, at a certain point, the Catalan Federation had to inform the National one. According to the RFEF Secretary General, the Spanish National Federation actually refused to register the concerned minors, but the Catalan Federation proceeded anyway. This alternative registering procedure is by no means contrary to TMS, but does increase the risk for “bureaucratic mistakes”. This case highlights the difficulty in identifying a responsible party. Despite the fact that FC Barcelona, RFEF and the Catalan Federation have a shared responsibility in the administrative mess-up leading to this procedure, FIFA only sanctioned the first two.

FIFA has been clear regarding the disciplinary sanctions: in accordance with article 23 of FIFA Disciplinary Code, FC Barcelona is imposed a ban to register new players for two complete and consecutive transfer periods (summer 2014 and January 2015). Moreover, the Club received a fine of CHF 450,000 and a deadline of 90 days in which to regularise the position of all minors concerned. The RFEF, for its part, received a fine of CHF 500,000 plus a deadline of one year in order to regularise their regulatory framework on this issue. With a turnover of more than 400 million Euro per year, it is unlikely that the Club is seriously worried about the fine. However, the transfer ban places the FC Barcelona in a very unpleasant situation. The first team is in need of certain important replacements, such as a new goalkeeper and a central defender, after both Víctor Valdés and Carles Puyol announced their departure this upcoming summer. Furthermore, it remains unclear what will happen with the promised signings of the German goalkeeper Marc-André Ter Stegen and the Croatian talent Alen Halilović.

FC Barcelona announced in its aforementioned official statement, that it will be appealing to the FIFA Appeal Committee and, if necessary, further appeal to CAS. Furthermore, the Club will demand for provisional measures in order to register new players during the next transfer window at least. Meanwhile, the RFEF is yet to give a detailed statement on its future legal strategy.

The fact that FIFA sanctions one of the biggest and renowned football clubs in the world in an unprecedented way demonstrates that they take this issue seriously, no matter how big the club in question is. The rules on minors is made to protect the best interest of the child. FIFA argues that the interest in protecting the appropriate and healthy development of a minor as a whole must prevail over purely sporting interests. This position is also supported by the International Federation of Professional Footballers (FIFPro), who fears that without the proper controls the development of a minor is not adequately protected against exploitation.

Undoubtedly, FC Barcelona will refer to the letter its former President, Sandro Rosell, sent to FIFA in March 2013. In this letter, Rosell argued that to fully safeguard the protection of minors, clubs must ensure the players can benefit from any good opportunity on their reach. In this regard, Rosell asked FIFA to consider a further exception on article 19 in favour of the clubs that have developed excellent Youth Academies. This would mean that certain clubs should be allowed to register minors regardless of their origin as long as the clubs compromise to take care of the minor until his 18th birthday.

This could be a valid argument but would require FIFA Regulations to be modified. With regard to provisional measures, the Club’s demand is very unlikely to be accepted by the FIFA Appeal Committee, since article 124 of the FIFA Disciplinary Code only permits a suspension of the economical sanction. At CAS, on the other hand, the Club should demonstrate the existence of an irreparable harm, the likelihood of success on the merits of the claim, and whether the interests of the FC Barcelona outweigh those of FIFA[2]. In this regard, FC Barcelona can refer to the Mexès case where CAS temporarily lifted the ban imposed on the Italian football club A.S. Roma[3]. Furthermore, it can also rely on a more recent precedent in this field: the Kakuta case.

Considering the potential impact of the imposed disciplinary sanctions, this legal dispute will be one of the most difficult and challenging games in FC Barcelona’s long history. But make no mistake, this is just the beginning of an exciting legal game…




[1] Article 19 stipulates a few exceptions that provide International transfers of minors to be allowed. In each case, FIFA’s Player’s Status Committee has exclusive competence to review the circumstances and permit the exception.

[2] R37 Provisional and Conservatory Measures – CAS Procedural Rules

[3] Arbitrage TAS 2005/A/916 AS Roma c. Fédération Internationale de Football Association (FIFA), §39-40

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