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

The Olympic Games and Human Rights – Part I: Introduction to the Host City Contract – By Tomáš Grell

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


In its press release of 28 February 2017, the International Olympic Committee ('IOC') communicated that, as part of the implementation of Olympic Agenda 2020 ('Agenda 2020'), it is making specific changes to the 2024 Host City Contract with regard to human rights, anti-corruption and sustainable development. On this occasion, IOC President Thomas Bach stated that ''this latest step is another reflection of the IOC's commitment to embedding the fundamental values of Olympism in all aspects of the Olympic Games''. Although the Host City of the 2024 Summer Olympic Games is scheduled to be announced only in September this year, it is now clear that, be it either Los Angeles or Paris (as Budapest has recently withdrawn its bid), it will have to abide by an additional set of human rights obligations.

This two-part blog will take a closer look at the execution of the Olympic Games from a human rights perspective. The first part will address the most serious human rights abuses that reportedly took place in connection with some of the previous editions of the Olympic Games. It will also outline the key characteristics of the Host City Contract ('HCC') as one of the main legal instruments relating to the execution of the Olympic Games. The second part will shed light on the human rights provisions that have been recently added to the 2024 HCC and it will seek to examine how, if at all, these newly-added human rights obligations could be reflected in practice. For the sake of clarity, it should be noted that the present blog will not focus on the provisions concerning anti-corruption that have been introduced to the 2024 HCC together with the abovementioned human rights provisions. More...



Exploring the Validity of Unilateral Extension Options in Football – Part 2: The view of the DRC and the CAS. By Saverio Spera

Editor’s Note: Saverio Spera is an Italian lawyer and LL.M. graduate in International Business Law at King’s College London. He is currently an intern at the ASSER International Sports Law Centre. 

This blog is a follow up to my previous contribution on the validity of Unilateral Extension Options (hereafter UEOs) under national and European law. It focuses on the different approaches taken to UEOs by the FIFA Dispute Resolution Chamber (DRC) and the Court of arbitration for sport (CAS). While in general the DRC has adopted a strict approach towards their validity, the CAS has followed a more liberal trend. Nonetheless, the two judicial bodies share a common conclusion: UEOs are not necessarily invalid. In this second blog I will provide an overview of the similarities and differences of the two judicial bodies in tackling UEOs. More...

Nudging, not crushing, private orders - Private Ordering in Sports and the Role of States - By Branislav Hock

Editor's note: Branislav Hock (@bran_hock)  is PhD Researcher at the Tilburg Law and Economics Center at Tilburg University. His areas of interests are transnational regulation of corruption, public procurement, extraterritoriality, compliance, law and economics, and private ordering. Author can be contacted via email: b.hock@uvt.nl.


This blog post is based on a paper co-authored with Suren Gomtsian, Annemarie Balvert, and Oguz Kirman.


Game-changers that lead to financial success, political revolutions, or innovation, do not come “out of the blue”; they come from a logical sequence of events supported by well-functioning institutions. Many of these game changers originate from transnational private actors—such as business and sport associations—that produce positive spillover effects on the economy. In a recent paper forthcoming in the Yale Journal of International Law, using the example of FIFA, football’s world-governing body, with co-authors Suren Gomtsian, Annemarie Balvert, and Oguz Kirman, we show that the success of private associations in creating and maintaining private legal order depends on the ability to offer better institutions than their public alternatives do. While financial scandals and other global problems that relate to the functioning of these private member associations may call for public interventions, such interventions, in most cases, should aim to improve private orders rather than replace them. More...



What Pogba's transfer tells us about the (de)regulation of intermediaries in football. By Serhat Yilmaz & Antoine Duval

Editor’s note: Serhat Yilmaz (@serhat_yilmaz) is a lecturer in sports law in Loughborough University. His research focuses on the regulatory framework applicable to intermediaries. Antoine Duval (@Ant1Duval) is the head of the Asser International Sports Law Centre.


Last week, while FIFA was firing the heads of its Ethics and Governance committees, the press was overwhelmed with ‘breaking news’ on the most expensive transfer in history, the come back of Paul Pogba from Juventus F.C. to Manchester United. Indeed, Politiken (a Danish newspaper) and Mediapart (a French website specialized in investigative journalism) had jointly discovered in the seemingly endless footballleaks files that Pogba’s agent, Mino Raiola, was involved (and financially interested) with all three sides (Juventus, Manchester United and Pogba) of the transfer. In fine, Raiola earned a grand total of € 49,000,000 out of the deal, a shocking headline number almost as high as Pogba’s total salary at Manchester, without ever putting a foot on a pitch. This raised eyebrows, especially that an on-going investigation by FIFA into the transfer was mentioned, but in the media the sketching of the legal situation was very often extremely confusing and weak. Is this type of three-way representation legal under current rules? Could Mino Raiola, Manchester United, Juventus or Paul Pogba face any sanctions because of it? What does this say about the effectiveness of FIFA’s Regulations on Working with Intermediaries? All these questions deserve thorough answers in light of the publicity of this case, which we ambition to provide in this blog.More...


International and European Sports Law – Monthly Report – April 2017. 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.More...

The Reform of FIFA: Plus ça change, moins ça change?

Since yesterday FIFA is back in turmoil (see here and here) after the FIFA Council decided to dismiss the heads of the investigatory (Cornel Borbély) and adjudicatory (Hans-Joachim Eckert) chambers of the Independent Ethics Committee, as well as the Head (Miguel Maduro) of the Governance and Review Committee. It is a disturbing twist to a long reform process (on the early years see our blogs here and here) that was only starting to produce some tangible results. More...

RFC Seraing at the Court of Arbitration for Sport: How FIFA’s TPO ban Survived (Again) EU Law Scrutiny

Doyen (aka Doyen Sports Investment Limited) is nothing short of heroic in its fight against FIFA’s TPO ban. It has (sometimes indirectly through RFC Seraing) attacked the ban in front of the French courts, the Belgium courts, the European Commission and the Court of Arbitration for Sport. This costly, and until now fruitless, legal battle has been chronicled in numerous of our blogs (here and here). It is coordinated by Jean-Louis Dupont, a lawyer who is, to say the least, not afraid of fighting the windmills of sport’s private regulators. Yet, this time around he might have hit the limits of his stubbornness and legal ‘maestria’. As illustrated by the most recent decision of the saga, rendered in March by the Court of Arbitration for Sport (CAS) in a case opposing the Belgium club RFC Seraing (or Seraing) to FIFA. The arguments in favour of the ban might override those against it. At least this is the view espoused by the CAS, and until tested in front of another court (preferably the CJEU) it will remain an influential one. The French text of the CAS award has just been published and I will take the opportunity of having for once an award in my native language to offer a first assessment of the CAS’s reasoning in the case, especially with regard to its application of EU law. More...

The Validity of Unilateral Extension Options in Football – Part 1: A European Legal Mess. By Saverio Spera

Editor’s Note: Saverio Spera is an Italian lawyer and LL.M. graduate in International Business Law at King’s College London. He is currently an intern at the ASSER International Sports Law Centre.

                 

In the football world the use of unilateral extension options (hereafter UEOs) in favour of the clubs is common practice. Clubs in Europe and, especially, South America make extensive use of this type of contractual clauses, since it gives them the exclusive possibility to prolong the employment relationship with players whose contracts are about to come to an end. This option gives to a club the right to extend the duration of a player’s contract for a certain agreed period after its initial expiry, provided that some previously negotiated conditions are met. In particular, these clauses allow clubs to sign young promising players for short-term contracts, in order to ascertain their potential, and then extend the length of their contracts.[1] Here lies the great value of UEOs for clubs: they can let the player go if he is not performing as expected, or unilaterally retain him if he is deemed valuable. Although an indisputably beneficial contractual tool for any football club, these clauses are especially useful to clubs specialized in the development of young players.[2] After the Bosman case, clubs have increasingly used these clauses in order to prevent players from leaving their clubs for free at the end of their contracts.[3] The FIFA Regulations do not contain any provisions regulating this practice, consequently the duty of clarifying the scope and validity of the options lied with the national courts, the FIFA Dispute Resolution Chamber (DRC) and the CAS. This two-part blog will attempt to provide the first general overview on the issue.[4] My first blog will be dedicated to the validity of UEOs clauses in light of national laws and of the jurisprudence of numerous European jurisdictions. In a second blog, I will review the jurisprudence of the DRC and the CAS on this matter. More...

Call for papers: ISLJ Annual Conference on International Sports Law - 26-27 October 2017

The editorial board of the International Sports Law Journal (ISLJ) is very pleased to invite you to submit abstracts for its first Annual Conference on International Sports Law. The ISLJ, published by Springer in collaboration with ASSER Press, is the leading publication in the field of international sports law. Its readership includes both academics and many practitioners active in the field. On 26-27 October 2017, the International Sports Law Centre of the T.M.C. Asser Instituut and the editorial board of the International Sports Law Journal will host in The Hague the first ever ISLJ Annual Conference on International Sports Law. The conference will feature panels on the Court of Arbitration for Sport, the world anti-doping system, the global governance of sports, the FIFA transfer regulations, comparative sports law, and much more.

More...


International and European Sports Law – Monthly Report – March 2017. 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.

 More...

Asser International Sports Law Blog | Blurred Nationalities: The list of the “23” and the eligibility rules at the 2014 FIFA World Cup. A guest Post by Yann Hafner (Université de Neuchâtel)

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

Blurred Nationalities: The list of the “23” and the eligibility rules at the 2014 FIFA World Cup. A guest Post by Yann Hafner (Université de Neuchâtel)

In 2009, Sepp Blatter expressed his concerns that half of the players participating in the 2014 FIFA World Cup would be Brazilians naturalized by other countries. The Official list of Players released a few weeks ago tends to prove him wrong[1]. However, some players have changed their eligibility in the past and will even be playing against their own country of origin[2]. This post aims at explaining the key legal aspects in changes of national affiliation and to discuss the regulations pertaining to the constitution of national sides in general[3].

The 32 national associations engaged in the final competition are bound by two sets of rules, namely the Regulations of the 2014 World Cup – Brazil and the Regulations Governing the Application of the FIFA Statutes 2013[4]. Their common purpose is to ensure that players have a genuine, close and credible link with the national association which selects them on its roster[5]. This is primarily ensured by the permanent holding of the nationality of the country of the national association in question[6]. It means that nationality must not be pegged to the residence of the player in a certain country[7]. Naturally, sanctions may apply in the case of a breach of these stipulations[8].

The global race to secure talent meeting this nationality requirement is not new. It appears that it has however reached a new level in light of the Diego Costa case since FIFA regulations do not prevent nor address the issue of dual call-up[9]. Many players, such as Manchester United midfield Adnan Janujaz (who actually just elected to play for Belgium a few weeks ago)[10], are placed in a difficult if not untenable position. They are indeed denied the right to refuse an international selection according to FIFA regulations even if they are called-up by both national teams they are affiliated to[11].

The recent Diego Costa saga put this issue under intense media scrutiny[12]. To summarize the issue, the Brazilian-born player had gained very few international appearances in the preliminary phase, playing exclusively friendlies for his country of birth, before acquiring Spanish nationality and moving to represent Spain at the 2014 FIFA World Cup. His choice was portrayed as traitorous by some officials of the Brazilian football federation. In light of this, imagine for one second the headlines of the worldwide press if Diego Costa had defeated Brazil during the knockout phase (28 or 29 June) or the grand final on 13 July 2014, if both teams had qualified for the second phase of the tournament. In the eyes of many, FIFA is responsible for allowing Diego Costa to play against his country of birth. However, this is overlooking that the acquisition of a new nationality and change of national associations are strictly regulated, and that such regulations are actually decided collectively by the members of FIFA. In this respect, it should be mentioned that the Brazilian Football Federation has not made any official move to modify the rules so far[13].


Acquisition of a new nationality

Article 7 of the 2013 FIFA Regulations reads as follow: “Any Player who refers to art. 5 par. 1 to assume a new nationality and who has not played international football in accordance with art. 5 par. 2 shall be eligible to play for the new representative team only if he fulfils one of the following conditions: a) He was born on the territory of the relevant Association; b) His biological mother or biological father was born on the territory of the relevant Association; c) His grandmother or grandfather was born on the territory of the relevant Association; d) He has lived continuously for at least five years after reaching the age of 18 on the territory of the relevant Association”.

Under this article, the acquisition of a new nationality must be distinguished with double nationality. Dual nationals by birth may elect to represent the national association of their choice. This is notably the case of football players born in Northern Ireland for instance[14]. They can play for the Irish Football Association (Northern Ireland) or the Football Association of Ireland (Ireland) as they can claim British and Irish nationalities at birth[15]. Of note, this article applies only to player who have acquired a new nationality before their first international appearance. If this is not the case, they will not be allowed to play for their new country. 

The “granny rule” and the five-year waiting period are the most controversial eligibility regulations. Some authors find indeed that gaining eligibility through a grandparent does not offer a link close enough with the country that the player wishes to represent. Consequently, they advocate that this provision be deleted from the FIFA regulations[16]. The waiting rule was introduced in order to protect national identity and young players[17] and thus, to prevent expedited naturalization of football players. It institutes a de facto prohibition to play at international level before the age of 23 years old when naturalized. This rule was challenged twice since its coming into force in 2008. First, the United Arab Emirates (UAE) Federation and the Australian Federation sought laxer rules in order to include immigrant players in their national side. The FIFA Congress rejected this bid by 153 to 42 votes and the second submission for a change was even withdrawn before being put to vote[18]. This landslide vote shows that FIFA members are favoring the status quo.

 

Change of association

Article 8, paragraph 1, of the 2013 FIFA Regulations reads as follow: “If a Player has more than one nationality, or if a Player acquires a new nationality, or if a Player is eligible to play for several representative teams due to nationality, he may, only once, request to change the Association for which he is eligible to play international matches to the Association of another Country of which he holds nationality, subject to the following conditions: a) He has not played a match (either in full or in part) in an Official Competition at “A” international level for his current Association, and at the time of his first full or partial appearance in an international match in an Official Competition for his current Association, he already had the nationality of the representative team for which he wishes to play; b) He is not permitted to play for his new Association in any competition in which he has already played for his previous Association”

Appropriately seeking to balance the interests involved, this rule serves to monitor change of eligibility and protect the integrity of international competitions while respecting the rights of players to move from one country to another[19]. FIFA did not monitor such changes until the mid-1960s[20]. The world governing body for football introduced at that time the concept of an election of nationality and banned change of national association until 2003.


The FIFA Congress introduced a limited right to change national affiliation but it was first reserved for U-23 players only[21]. In 2008, FIFA extended this right to any player provided that they were dual nationals when they had played for their first country and had not played in an Official Competition at “A” level (i.e. with the first team of a national association)[22]. The chart indicates that the number of requests to change association increased dramatically after 2008. However, it has now stabilized at approximately 30 requests per year. In this respect, the 2014 FIFA World Cup does not seem to have had any effect compared to the 2010 edition combined with the new set of rules.

To date, 237 players have taken the opportunity to change national affiliation and 24 of them are currently participating in the 2014 FIFA World Cup. This represents approximately 10.10% of the 237 players and only 3.26% of the 736 players engaged in the competition. This figure is line with the 2004 Athens Olympics Games for instance where 2.6% of the athletes had change their sporting nationality[23]. It shows that the concerns of Sepp Blatter have not materialized and that the situation is currently under control. Therefore, there is certainly no urgent need to further strengthen the existing regulatory framework.


[1]For a mapping of ancestral and international connections between teams, see: Brazil 2014: Visualising ancestral and international connections between teams (http://codehesive.com/wc-ancestry/).

[2] If he had been fielded, Eduardo Alves da Silva would have been the first to play against his country of birth during the opening match (Brazil – Croatia: 2 – 1).

[3] This post will not address the issue of shared nationalities (art. 6 Regulations Governing the Application of the FIFA Statutes 2013) and change of association due to states authorities nor its process (art. 8 par 2 and 3 Regulations Governing the Application of the FIFA Statutes 2013).

[4] Available at FIFA.com.

[5] McCutcheon, National eligibility rules after Bosman, in: Professional Sport in the EU: Regulation and Re-regulation TMC Asser Press (Den Haag) p. 127.

[6] Article 5 par. 1 Regulations Governing the Application of the FIFA Statutes 2013.

[7] Article 5 par. 1 Regulations Governing the Application of the FIFA Statutes 2013.

[8] Fielding an ineligible player is sanctioned by the mandatory forfeiture of the game and a CHF 6’000 fine (article 8 par. 3 the Regulations of the 2014 World Cup – Brazil and article 31 FIFA Disciplinary Code).

[9] A situation of dual call-up may occur when a player, dual national and who has not elected a sporting nationality, is called by both associations he belongs to. This raises the issue of the right to refuse an international selection.

[10] According to the project Brazil 2014: Visualising ancestral and international connections between teams, Adnan Janujaz is the most connected player.

[11] Article 3 par. 1 – Annexe 1 – Regulations on the Status and Transfer of Players 2012.

[12] See for example: Páez Romero, Regulations: Player eligibility: the Diego Costa case, in: World Sports Law Report, Vol. 12 issue 1 (January 2014); Margaritis, The Dynamics of nationality and football, in: LawInSport, 28 April 2014; Lovatt, Changing nationality in football: the FIFA rules that helped Brazilian Diego Costa play for Spain, in: LawInSport, 4 November 2013.

[13] This is probably due to the fact that the Brazilian Football Federation has lost only one player to the current FIFA regulations. It should be noted that Brazilian players who have never been selected nor have played in friendlies are not cast by FIFA statistics on change of eligibility.

[14] Hafner, La qualification des joueurs en équipe représentative au regard de la réglementation de la FIFA : le cas de la Coupe du monde 2010, n° 35.

[15] Cf. CAS 2010/A/2071 Irish Football Association v/ Football Association of Ireland, Daniel Kearns and FIFA, award of 27 September 2010.

[16] For instance: Hall, Fishing for All-Stars in a Time of Global Free Agency: Understanding FIFA Eligibility Rules and the Impact on the U.S. Men’s National Team, in: Marquette Sports Law Review, Vol. 23 Issue 1, p. 205.

[17] FIFA Congress 2011 – Minutes, p. 64.

[18] FIFA Congress 2011 – Minutes, p. 64 and FIFA Congress 2013, Minutes, p. 85.

[19] McCutcheon, National eligibility rules after Bosman, in: Professional Sport in the EU: Regulation and Re-regulation TMC Asser Press (Den Haag) p. 138. A general prohibition of change eligibility is likely to be deemed illegal. Cf. Oswald, First conclusions of the lecturers, in : La nationalité dans le sport : Enjeux et Problèmes, Editions CIES (Neuchâtel) 2006, p.201.

[20] Hall, Fishing for All-Stars in a Time of Global Free Agency: Understanding FIFA Eligibility Rules and the Impact on the U.S. Men’s National Team, in: Marquette Sports Law Review, Vol. 23 Issue 1, p. 194. Van den Bogaert, Practical Regulation of the Mobility of Sportsmen in the EU post Bosman, p. 348.

[21] Hafner, La qualification des joueurs en équipe représentative au regard de la réglementation de la FIFA : le cas de la Coupe du monde 2010, n° 44.

[22] Hafner, La qualification des joueurs en équipe représentative au regard de la réglementation de la FIFA : le cas de la Coupe du monde 2010, n° 45.

[23] Poli/Gillon, La naturalisation de sportifs et fuite des muscles. Le cas des Jeux Olympiques de 2004, in : La nationalité dans le sport : Enjeux et Problèmes, Editions CIES (Neuchâtel) 2006, p. 59.


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Asser International Sports Law Blog | ISLJ Annual International Sports Law Conference - Final Days For Early Bird Registration - Deadline 15 September

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

Comments are closed