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 Müller case: Revisiting the compatibility of fixed term contracts in football with EU Law. By Kester Mekenkamp

Editor’s note: Kester Mekenkamp is an LL.M. student in European Law at Leiden University and an intern at the ASSER International Sports Law Centre.

On 17 February 2016, the Landesarbeitsgericht Rheinland-Pfalz delivered its highly anticipated decision in the appeal proceedings between German goalkeeper Heinz Müller and his former employer, German Bundesliga club Mainz 05.[1] The main legal debate revolved around the question (in general terms) whether the use of a fixed term contract in professional football is compatible with German and EU law. 

In first instance (see our earlier blog posts, here and here), the Arbeitsgericht Mainz had ruled that the ‘objective reasons’ provided in Section 14 (1) of the German Part-time and Fixed-term Employment Act (Gesetz über Teilzeitarbeit und befristete Arbeitsverträge, “TzBfG”), the national law implementing EU Directive 1999/70/EC on fixed-term work, were not applicable to the contract between Müller and Mainz 05 and therefore could not justify the definite nature of that contract.[2] In its assessment the court devoted special attention to the objective reason relating to the nature of the work, declining justifications based thereupon.[3] Tension rose and the verdict was soon labelled to be able to have Bosman-like implications, if held up by higher courts.[4] More...

The BGH’s Pechstein Decision: A Surrealist Ruling



The decision of the Bundesgerichtshof (BGH), the Highest Civil Court in Germany, in the Pechstein case was eagerly awaited. At the hearing in March, the Court decided it would pronounce itself on 7 June, and so it did. Let’s cut things short: it is a striking victory for the Court of Arbitration for Sport (CAS) and a bitter (provisory?) ending for Claudia Pechstein. The BGH’s press release is abundantly clear that the German judges endorsed the CAS uncritically on the two main legal questions: validity of forced CAS arbitration and the independence of the CAS. The CAS and ISU are surely right to rejoice and celebrate the ruling in their respective press releases that quickly ensued (here and here). At first glance, this ruling will be comforting the CAS’ jurisdiction for years to come. Claudia Pechstein’s dire financial fate - she faces up to 300 000€ in legal fees – will serve as a powerful repellent for any athlete willing to challenge the CAS.More...



The EU State aid and Sport Saga: Hungary revisited? (Part 2)

On 18 May 2016, the day the first part of this blog was published, the Commission said in response to the Hungarian MEP Péter Niedermüller’s question, that it had “not specifically monitored the tax relief (…) but would consider doing so. The Commission cannot prejudge the steps that it might take following such monitoring. However, the Commission thanks (Niedermüller) for drawing its attention to the report of Transparency International.”

With the actual implementation in Hungary appearing to deviate from the original objectives and conditions of the aid scheme, as discussed in part 1 of this blog, a possible monitoring exercise by the Commission of the Hungarian tax benefit scheme seems appropriate. The question remains, however, whether the Commission follows up on the intent of monitoring, or whether the intent should be regarded as empty words. This second part of the blog will outline the rules on reviewing and monitoring (existing) aid, both substantively and procedurally. It will determine, inter alia, whether the State aid rules impose an obligation upon the Commission to act and, if so, in what way. More...

The Rise and Fall of FC Twente

Yesterday, 18 May 2016, the licensing committee of the Dutch football federation (KNVB) announced its decision to sanction FC Twente with relegation to the Netherland’s second (and lowest) professional league. The press release also included a link to a document outlining the reasons underlying the decision. For those following the saga surrounding Dutch football club FC Twente, an unconditional sanction by the licensing committee appeared to be only a matter of time. Yet, it is the sanction itself, as well as its reasoning, that will be the primary focus of this short blog.More...

The EU State aid and Sport Saga: Hungary’s tax benefit scheme revisited? (Part 1)

The tax benefit scheme in the Hungarian sport sector decision of 9 November 2011 marked a turning point as regards the Commission’s decisional practice in the field of State aid and sport. Between this date and early 2014, the Commission reached a total of ten decisions on State aid to sport infrastructure and opened four formal investigations into alleged State aid to professional football clubs like Real Madrid and Valencia CF.[1] As a result of the experience gained from the decision making, it was decided to include a Section on State aid to sport infrastructure in the 2014 General Block Exemption Regulation. Moreover, many people, including myself, held that Commission scrutiny in this sector would serve to achieve better accountability and transparency in sport governance.[2]

Yet, a recent report by Transparency International (TI), published in October 2015, raises questions about the efficiency of State aid enforcement in the sport sector. The report analyzes the results and effects of the Hungarian tax benefit scheme and concludes that:

“(T)he sports financing system suffers from transparency issues and corruption risks. (…) The lack of transparency poses a serious risk of collusion between politics and business which leads to opaque lobbying. This might be a reason for the disproportionateness found in the distribution of the subsidies, which is most apparent in the case of (football) and (the football club) Felcsút.”[3]

In other words, according to TI, selective economic advantages from public resources are being granted to professional football clubs, irrespective of the tax benefit scheme greenlighted by the Commission or, in fact, because of the tax benefit scheme. More...

International and European Sports Law – Monthly Report – April 2016. By Marine Montejo

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

This month saw the conflict between FIBA Europe and the Euroleague (more precisely its private club-supported organizing body, Euroleague Commercial Assets or ‘ECA’) becoming further entrenched. This dispute commenced with FIBA creating a rival Basketball Champions League, starting from the 2016-2017 season with the hope to reinstate their hold over the organization of European championships. The ECA, a private body that oversees the Euroleague and Eurocup, not only decided to maintain its competitions but also announced it would reduce them to a closed, franchise-based league following a joint-venture with IMG. In retaliation, FIBA Europe suspended fourteen federations of its competition (with the support of FIBA) due to their support for the Euroleague project.More...


The boundaries of the “premium sports rights” category and its competition law implications. By Marine Montejo

Editor’s note: Marine Montejo is a graduate from the College of Europe in Bruges and is currently an Intern at the ASSER International Sports Law Centre.

In its decisions regarding the joint selling of football media rights (UEFA, Bundesliga, FA Premier league), the European Commission insisted that premium media rights must be sold through a non-discriminatory and transparent tender procedure, in several packages and for a limited period of time in order to reduce foreclosure effects in the downstream market. These remedies ensure that broadcasters are able to compete for rights that carry high audiences and, for pay TV, a stable number of subscriptions. In line with these precedents, national competition authorities have tried to ensure compliance with remedy packages. The tipping point here appears to be the premium qualification of sport rights on the upstream market of commercialization of sport TV rights.

This begs the question: which sport TV rights must be considered premium? More...

Guest Blog - Mixed Martial Arts (MMA): Legal Issues by Laura Donnellan

Editor's note: Laura Donnellan is a lecturer at University of Limerick. You can find her latest publications here.


Introduction

On Tuesday the 12th of April, João Carvalho passed away in the Beaumont Hospital after sustaining serious injuries from a mixed martial arts (MMA) event in Dublin on the previous Saturday. The fighter was knocked out in the third round of a welterweight fight against Charlie Ward. Aside from the tragic loss of life, the death of Carvalho raises a number of interesting legal issues. This opinion piece will discuss the possible civil and criminal liability that may result from the untimely death of the Portuguese fighter.

It is important to note at the outset that MMA has few rules and permits wrestling holds, punching, marital arts throws and kicking. MMA appears to have little regulation and a lack of universally accepted, standardised rules. There is no international federation or governing body that regulates MMA. It is largely self-regulated. MMA is not recognised under the sports and governing bodies listed by Sport Ireland, the statutory body established by the Sport Ireland Act 2015 which replaced the Irish Sports Council. MMA is considered a properly constituted sport so long as the rules and regulations are adhered to, there are appropriate safety procedures, the rules are enforced by independent referees, and it appropriately administered.

The Acting Minister for Sport, Michael Ring, has called for the regulation of MMA. Currently there are no minimum requirements when it comes to medical personnel; nor are there any particular requirements as to training of medical personnel. The promoter decides how many doctors and paramedics are to be stationed at events. In February 2014 Minister Ring wrote to 17 MMA promoters in Ireland requesting that they implement safety precautions in line with those used by other sports including boxing and rugby.

Despite this lack of regulation, this does not exempt MMA from legal liability as the discussion below demonstrates.More...



Guest Blog - The Role of Sport in the Recognition of Transgender and Intersex Rights by Conor Talbot

Editor's note: Conor Talbot is a Solicitor at LK Shields Solicitors in Dublin and an Associate Researcher at Trinity College Dublin. He can be contacted at ctalbot@tcd.ie, you can follow him on Twitter at @ConorTalbot and his research is available at www.ssrn.com/author=1369709. This piece was first published on the humanrights.ie blog.

Sport is an integral part of the culture of almost every nation and its ability to shape perceptions and influence public opinion should not be underestimated.  The United Nations has highlighted the potential for using sport in reducing discrimination and inequality, specifically by empowering girls and women.  Research indicates that the benefits of sport include enhancing health and well-being, fostering empowerment, facilitating social inclusion and challenging gender norms.

In spite of the possible benefits, the successful implementation of sport-related initiatives aimed at gender equity involves many challenges and obstacles.  Chief amongst these is the way that existing social constructs of masculinity and femininity — or socially accepted ways of expressing what it means to be a man or woman in a particular socio-cultural context — play a key role in determining access, levels of participation, and benefits from sport.  This contribution explores recent developments in the interaction between transgender and intersex rights and the multi-billion dollar industry that the modern Olympic Games has become.  Recent reports show that transgender people continue to suffer from the glacial pace of change in social attitudes and, while there has been progress as part of a long and difficult journey to afford transgender people full legal recognition through the courts, it seems clear that sport could play an increasingly important role in helping change or better inform social attitudes.More...



Unpacking Doyen’s TPO Deals: The Final Whistle

Footballleaks is now operating since nearly half a year and has already provided an incredible wealth of legal documents both on TPO (and in particular Doyen’s contractual arrangements) and on the operation of the transfer system in football (mainly transfer agreements, player contracts and agents contracts). This constant stream of information is extremely valuable for academic research to get a better grip on the functioning of the transfer market. It is also extremely relevant for the shaping of public debates and political decisions on the regulation of this market. As pointed out on the footballleaks website, it has triggered a series of press investigations in major European news outlets.

In this blog, I want to come to a closure on our reporting on Doyen’s TPO deals. In the past months, we have already dealt with the specific cases of FC Twente and Sporting Lisbon, reviewed Doyen’s TPO deals with Spanish clubs, as well as discussed the compatibility of the TPO ban with EU law. In the Sporting Lisbon case, Doyen has since earned an important legal victory in front of the CAS (the ensuing award was just published by Footballleaks). This victory should not be overstated, however, it was not unexpected due to the liberal understanding of the freedom of contract under Swiss law. As such it does not support the necessity of TPO as an investment practice and does not threaten the legality (especially under EU law) of FIFA’s ban.

In our previous blogs on Doyen’s TPO deals we decided to focus only on specific deals, Twente and Sporting Lisbon, or a specific country (Spain). However, nearly six months after the whole footballleaks project started, we can now provide a more comprehensive analysis of the TPO deals signed by Doyen. Though, it is still possible that other, yet unknown, deals would be revealed, I believe that few of Doyen’s TPO agreements are still hidden. Thanks to footballleaks, we now know how Doyen operates, we have a precise idea of its turnover, its return on investments and the pool of clubs with which it signed a TPO agreement. Moreover, we have a good understanding of the contractual structure used by Doyen in those deals. This blog will offer a brief synthesis and analysis of this data.More...





Asser International Sports Law Blog | Kosovo at the Court of Arbitration for Sport – Constructing Statehood Through Sport? By Ryan Gauthier (Thompson Rivers 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

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

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


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

 

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



A few days later, Kosovo, along with Gibraltar, were admitted into the Fédération Internationale de Football (FIFA) as members. This marked the increasing recognition of Kosovo as an independent entity for sporting purposes, with Kosovo’s National Olympic Committee receiving recognition from the International Olympic Committee (IOC) in December 2014.

The admission of Kosovo as an independent competitor in the sporting world has touched off controversy, particularly in Serbia. Kosovo has attempted to assert its independence from Serbia for more than two decades, with a formal declaration of independence in 2008 – a declaration that was referred to the International Court of Justice who found that the declaration was not a violation of international law (I.C.J. Reports 2010, p. 403). The Football Federation of Serbia (Serbia) sought review of UEFA’s decision, and took its case to the Court of Arbitration for Sport (CAS). CAS upheld UEFA’s decision in January 2017 (CAS 2016/A/4602).

 

The CAS Decision

Serbia’s argument to the CAS was that UEFA violated its own regulations by admitting Kosovo as a member. Other grounds, namely procedural grounds, and an alleged violation of Serbia’s freedom of association rights, were raised. However, the CAS denied Serbia relief on those grounds, and I’ll leave a discussion of those aside in order to get to the decision on the substance of UEFA’s regulations.

The main point of contention in the complaint was the interpretation of the UEFA Statutes Art. 5(1), which deals with the admission of new members:

Membership of UEFA is open to national football associations situated in the continent of Europe, based in a country which is recognised by the United Nations as an independent state, and which are responsible for the organisation and implementation of football-related matters in the territory of their country.

The CAS panel found this provision to be ambiguous based on the reality that the United Nations does not recognise states. Instead, an entity must be a state to become a member of the United Nations (UN Charter, Art. 4(1)). Since the part of the provision at issue, whether or not Kosovo could be admitted since it was not “recognised by the United Nations as an independent state”, was void, how was the provision to be interpreted?

The CAS turned to four principles of statutory interpretation, based on the Swiss Civil Code: the genesis of the law, a systematic interpretation, common practice and understanding, and the ratio (purpose) of the provision. The CAS found the first three principles to be unhelpful, as these principles ultimately uncovered elements that only led to the ambiguity in the first place.

The CAS finally turned to the ratio of the provision. It found that the purpose of the provision was to have one football federation per country, and to limit secessions of football federations only to instances where the secession was supported in a broader political sense. The CAS stated that: “the attempt to mirror the solutions and realities of the political map onto the sporting world makes a lot of sense” (para. 123). The panel also noted that the Olympic Charter and FIFA Statutes defined a “country” as “an independent state recognised by the international community”, and pointed out that Kosovo’s sports bodies had been recognised by the IOC and other international sporting federations under this definition. As a result, the CAS found that the definition of “country” had a common understanding in the sporting community, and it was one that did not require UN membership.

 

The Gibraltar Decision

Both UEFA’s decision, and the CAS case, have their roots in the late 1990s, but in regards to a territory on the other side of Europe – Gibraltar. Gibraltar is not an independent state, but is a territory of the United Kingdom. It is also a source of diplomatic conflict between the United Kingdom, and Gibraltar’s neighbour – Spain. Gibraltar applied for UEFA membership in 1997. Having had its own football association since 1895, and with the UEFA requirements then only requiring that a UEFA member have its own football association that oversees football in the territory, Gibraltar’s application looked to be a lock. Indeed, the application was initially positively received by UEFA, and looked to be a done deal by the year 2000.

However, UEFA repeatedly delayed making a final determination, in part because of Spanish opposition to Gibraltar’s membership (the English Football Association, for its part, was supportive of Gibraltar). After more than two years, UEFA still had not made a determination on Gibraltar’s membership. Yet, they had received, processed, and approved an application by Kazakhstan to join UEFA after it had left the Asian Football Confederation in 2001. UEFA remained pretty busy during this time, as they changed their rules regarding the admission of new members to UEFA. The new change was the language that was at issue in the Kosovo case – that a new member be recognised as an independent state by the United Nations.

The case was brought before the CAS (2002/O/410), where Gibraltar sought a declaration that its application be considered under the pre-2001 rules that it had initially applied under, and that its application be accepted by UEFA. The CAS agreed with Gibraltar that UEFA could not change its rules mid-stream, finding that upholding such a change would violate a presumption against retrospectivity in regards to substantive laws, and principles of good faith. The CAS ordered UEFA to decide on Gibraltar’s membership based on the pre-2001 rules. After two more arbitrations heard by the CAS in 2006 and 2013, Gibraltar was admitted as a UEFA member in 2013. Gibraltar’s status as a FIFA member was similarly accomplished through CAS decisions.

 

Sport as a Playground for International Law

With all apologies to this blog’s Editor-in-Chief Antoine Duval, sport is not just a playground for transnational law, but also for international law. Scholars of international relations and international law are frequently surprised with the complexity and the depth of sports’ legal system. But perhaps more surprising is the consistent surprise that sports is more than simply “low politics”, and something that can be safely ignored in light of other areas such as military force, international trade, and the like.

I suggest that a case such as Kosovo’s quest for recognition by sporting bodies does matter for international law and international relations more generally. On the merits, these cases are administrative law exercises, whereby the CAS is merely ensuring that UEFA has complied with its own procedures, and the Kosovo case is a statutory interpretation exercise. However, I think that these cases – particularly the Kosovo case, should help shape our understanding of establishing a state.

There is a debate in international law over when a political entity becomes a “state” – with the attendant rights and obligations. The “constitutive” theory argues that an entity can only become a state when other states recognize it. The “declaratory” theory argues that so long as certain “facts on the ground” are established (usually the Montevideo Convention requirements of territory, population, government, and the capacity to enter into foreign relations), recognition is merely a declaration of what is already the case.

Kosovo is in the midst of attempting to establish its statehood. Currently, 110 UN member states recognise Kosovo. However, Serbia, Russia, and China, amongst others, do not. In establishing its statehood, Kosovo is unlikely to obtain UN membership anytime soon, with two of the permanent members of the Security Council likely to veto any attempt by Kosovo to join.

However, Kosovo appears to be taking a page from the playbook of states that went through de-colonization – not only obtain a seat at the UN, but obtain recognition from the IOC (and other sporting bodies). Next to having a seat at the UN, participation in the Olympic Games is one of the most visible signifiers of statehood. What could a more powerful signal of independence than having one’s athletes march in the opening ceremonies of an Olympic Games, waving the state’s flag, and having its anthem play upon winning a gold medal in front of thousands of people live and billions of people watching from home?

 


Source: http://www.nbcolympics.com/news/judo-day-2-preview-majlinda-kelmendi-eyes-olympic-history.

If you are skeptical that states care about who participates in international sporting events, Taiwan remains a prime example. Taiwan does not compete as “Taiwan”, or as the “Republic of China” along with its national flag – but instead its athletes compete under “Chinese Taipei”, using a different flag with the Olympic Rings on it. This was as a result of a deal brokered by the IOC and the People’s Republic of China in 1979 to get the People’s Republic of China to participate in the Olympic Games – a deal eventually accepted by Taiwan in 1981.

What cases like Chinese Taipei and Kosovo suggest is that although recognition is important in establishing statehood, it may not be limited to state recognition. While states may be the only organisations that have international legal personality, there are cracks forming in that monolithic conceptualization of international law. It is clear that sporting organizations such as the IOC, FIFA, and UEFA do not have international legal personality. However, they act as global administrative bodies, responsible for the organization of much of global sport. As such, these bodies have the reach and arguably, influence of the UN bodies – creatures of states that have international legal personality.

A real concern over constructing statehood through, inter alia sporting competition is that it may create a “slippery slope”. After all, if Gibraltar – certainly not a state – and Kosovo – questionably a state – can join UEFA, FIFA, or have a National Olympic Committee recognized, what is to stop other entities from doing the same? “Alternative” competitions involving entities that are not recognized as states, such Northern Cyprus, or ethnic groups such as the Sami of Scandinavia or the Romani of Europe, have taken place. Could one of these entities apply to join the international sporting community? The line-drawing by international sporting organisations has thus far proven to be problematic. However, this is a question perhaps best left for future research.

So, in the end, does the UEFA admission and CAS decision make Kosovo a state? Legally-speaking, probably not. Becoming a state entails not only rights at international law, but also obligations. It seems perhaps a stretch to say that a decision by a private arbitral body that oversees a specialized area would be determinative of a highly-contentious issue. However, one step below that is the political question of whether recognition by these sporting bodies helps Kosovo’s claims to statehood. I think the answer is as follows: If you ask the “man on the street” whether Kosovo was a state as Majlinda Kelmendi (the flag-bearer in the photo above) stood on the podium after winning a gold medal in judo at the 2016 Summer Games, or while that man watches the Kosovo team participate in the UEFA Euro and FIFA World Cups – that answer is more and more likely to be “yes”.

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