Editor’s Note: Oytun Azkanar holds an LLB degree from Anadolu University in Turkey and an LLM degree from the University of Melbourne. He is currently studying Sports Management at the Anadolu University.

Introduction

On 19 October 2017, the Turkish Professional Football Disciplinary Committee (Disciplinary Committee) rendered an extraordinary decision regarding the fixing of the game between Manisaspor and Şanlıurfaspor played on 14 May 2017. The case concerned an alleged match-fixing agreement between Elyasa Süme (former Gaziantepspor player), İsmail Haktan Odabaşı and Gökhan Sazdağı (Manisaspor players). The Disciplinary Committee acknowledged that the evidence relevant for proving the match-fixing allegations was obtained illegally and therefore inadmissible, and the remaining evidence was not sufficient to establish that the game was fixed. Before discussing the allegations, it is important to note that the decision is not only significant for Turkish football but is also crucial to the distinction between disciplinary and criminal proceedings in sports.

Background of the Case

During the last weeks of the 2016/2017 season in Turkish 2^nd Division League, three teams, namely Manisaspor, Şanlıurfaspor and Gazişehir Gaziantep, were competing to avoid relegation. At the penultimate week, Manisaspor played against Şanlıurfaspor and won the game. Gazişehir Gaziantep also won its match. As a consequence of these results, Şanlıurfaspor was relegated to a lower division. At the end of the season, on 5 July 2017, Şanlıurfaspor claimed that the club Gazişehir Gaziantep had attempted to influence the outcomes of the games and Şanlıurfaspor appealed to the Turkish Football Federation (TFF).

Şanlıurfaspor’s claims mainly focused on the recording of the talk between Nizamettin Keremoğlu (Vice-President of Gazişehir), Elyasa Süme (a former Gaziantepspor player), Gökhan Sazdağı (Gazişehir player who was on loan at Manisaspor at the time) and İsmail Haktan Odabaşı (Manisaspor player). The recording was leaked and uploaded on Youtube. The content of the recording clearly demonstrates that incentives were provided to Manisaspor players by Gazişehir in order to encourage them to win against Şanlıurfaspor. Furthermore, Gökhan Sazdağı confessed in the recording that he had been involved in match-fixing before and that this would not be his first time. In addition, Gaziantepspor claimed that Elyasa Süme was involved in match-fixing. On 20 July 2017, based on these serious allegations and the incriminating evidence publically released, the TFF referred Şanlıurfaspor’s application to the Turkish Football Federation Ethics Committee (Ethics Committee). Following the Ethics Committee’s report, the TFF subsequently referred the case to the Disciplinary Committee for determining the possible sanctions to be imposed on Gazişehir Gaziantep, Nizmettin Keremoğlu, Elyasa Süme, Gökhan Sazdağı and İsmail Haktan Odabaşı. Finally, on 19 October 2017, the Disciplinary Committee decided that the evidence relevant for proving match-fixing was illegally obtained and the remaining evidence was not enough to establish an instance of match-fixing.

Separating Disciplinary and Criminal Proceedings

It is generally accepted that in sports law disciplinary proceedings are to be treated differently than criminal investigations.[1] In countries like Turkey, match-fixing and/or match-fixing attempts also constitute a crime. Article 11(1) of the Act on the Prevention of Violence and Disorder in Sports stipulates that a person providing advantages or benefits in order to influence the final result of a game shall be punished with imprisonment from five to twelve years. Article 11(5) of the same regulation also states that in case of commission of the offense by offering or promising incentive pay with the intention of enabling one team to win a match, only half of the punishment is to be imposed.

On the other hand, match-fixing and incentives also appear in Article 58 of the Turkish Football Disciplinary Instruction. The said provision makes clear that it is forbidden to influence the outcome of the games illegally or unethically. Incentives fall also within the scope of this provision. In case of a breach, individuals will face a life-long ban. In case of an attempt at match-fixing or of the provision of unlawful incentives, clubs will be sanctioned by at least a 12 points deduction.

It is important to note that Turkish prosecutors have not yet opened a criminal investigation for the allegations related to the provision of incentives, even if the allegations and evidence are serious.

The Position of FIFA, UEFA, and CAS with respect to Match-Fixing Allegations and Binding Rules for Turkish Authorities     

FIFA as the world's governing body of football has put in place significant provisions regarding match-fixing and corruption in football. Article 69 FIFA Disciplinary Code stipulates that anyone who unlawfully influences the outcomes of football games can be banned from taking part in any football-related activity for life. Furthermore, Article 3.10 FIFA Code of Conduct also highlights the importance of zero tolerance for bribery and corruption.  

UEFA president Michael Platini announced in 2011 that a zero tolerance policy was adopted by UEFA regarding match-fixing, and that all match-fixing allegations would be seriously investigated. Moreover, as evidenced in Sport Lisboa e Benfica Futebol SAD, Vitoria Sport Clube de Guimaraes v. UEFA and FC Porto Futebol SAD, UEFA is not bound by national associations’ decisions in this regard.

A zero-tolerance policy requires that match-fixing attempts be punished heavily. This does not mean, however, that there is no standard of proof for match-fixing allegations. According to the CAS, match-fixing allegations must be proved to its comfortable satisfaction. [2] Comfortable satisfaction is defined by the CAS as a standard that is higher than the civil standard of “balance of probability” but lower than the criminal standard of “proof beyond a reasonable doubt”.[3] In my view, considering the evidence in the case of Şanlıurfaspor, in particular the recordings and the statements of the clubs, it should be accepted that the standard of proof for match-fixing allegations was met.

What is crucial in our case is that UEFA and the CAS cannot intervene in the Turkish match-fixing proceedings due to Article 64(1) of the Statutes of the Turkish Football Federation stating that “CAS shall not, however, hear appeals on violation of the laws of the game, suspensions according to relevant provisions of the FIFA and UEFA Statutes, or decisions passed by the independent and duly constituted Arbitration Committee of the TFF”. Moreover, Article 59(3) of the Turkish Constitution provides that “the decisions of sports federations relating to administration and discipline of sporting activities may be challenged only through compulsory arbitration. The decisions of the Arbitration Board are final and shall not be appealed to any judicial authority”. On the other hand, in case of a breach, FIFA has the authority, relying on its Code of Conduct and Disciplinary Code, to take important steps in order to sanction clubs and/or individuals, even where national federations fail to do so. Therefore, on 25 October 2017, Şanlıurfaspor declared that if the Arbitration Board of the TFF did not sanction clubs and individuals who were allegedly involved in match-fixing, it would apply to FIFA to do so.

The Validity of Evidence

The main reason why the Disciplinary Committee did not find the clubs and individuals guilty of match-fixing was that the evidence, which was crucial to support the allegations, was obtained illegally. Therefore, it is of primary importance to compare this position to the one adopted by UEFA, CAS, and the Swiss Federal Tribunal with respect to the validity of illegally obtained evidence in disciplinary proceedings involving match-fixing.

UEFA’s position regarding the admissibility of evidence can be derived from specific provisions in its regulations. For instance, Article 4(2) 2017/2018 UEFA Champions League Regulations expressly states that if UEFA is comfortably satisfied that a club was involved in any activity aimed at arranging or influencing the outcome of a match, such club will be ineligible for the participation. While taking its decision, UEFA can rely on the decision of a national or international sporting body, but it is not bound by these decisions. Article 4(2) allows UEFA to punish clubs, even if they have been exonerated by other sporting bodies. Therefore, it can be concluded that if UEFA is comfortably satisfied, the validity of evidence will not be questioned. The article says nothing about the validity of evidence. In addition, even if national sports governing bodies do not punish clubs and/or individuals, UEFA is not bound by national decisions even if the evidence was illegally obtained. [4]

The CAS also supports the approach of UEFA with regard to the admissibility of evidence in match-fixing cases. According to the CAS jurisprudence, “even if evidence might not be admissible in a civil or criminal court in Switzerland, this does not automatically prevent a sports federation or an arbitration tribunal from taking such evidence into account in its deliberations”.[5] This statement clearly shows that the CAS distinguishes criminal or civil court proceedings from disciplinary proceedings. As a matter of fact, it can be argued that the CAS allows national sports governing bodies to evaluate the admissibility of match-fixing evidence less strictly than in criminal proceedings.

In general, the CAS is bound by Swiss law because it is domiciled in Switzerland. Therefore, the Swiss Federal Tribunal may annul the CAS awards if they are contrary to Swiss public policy. One could argue that a decision based on illegally obtained evidence violates Swiss public policy. Thus, the approach of the Swiss Federal Tribunal also needs to be taken into account. The Swiss Federal Tribunal discussed the admissibility of evidence in A. v The Football Federation of Ukraine. In this case, the appellant claimed that using illegally obtained evidence, violated Swiss public policy. As a response to this claim, the respondent (CAS) argued that there was an overriding public interest in preserving football’s integrity. Therefore, the evidence should have been admissible according to the CAS. The Swiss Federal Tribunal held that pursuant to Article 152(2) Swiss Private International Law Act (PILA), “illegally obtained evidence shall be considered only if there is an overriding interest in finding the truth”. In that particular case, the Swiss Federal Tribunal upheld the decision of the CAS and stated that if necessary to prove an instance of match-fixing, illegally obtained evidence was not inadmissible.

The Approach of Turkish Law against Match-Fixing

As explained above, the Act on the Prevention of Violence and Disorder in Sports and the Turkish Football Disciplinary Instruction contain significant provisions aimed at combating match-fixing. However, these rules say nothing about the admissibility of evidence. Pursuant to Article 38(6) Turkish Constitution, “findings obtained through illegal methods shall not be considered evidence”. Contrary to the PILA, the Turkish Constitution does not provide for exemptions. Additionally, Article 206(2) and 217(2) Turkish Criminal Procedure Code provide that illegally obtained evidence cannot be accepted by criminal courts in Turkey. Nevertheless, there is no definitive verdict about the admissibility of evidence in sporting disciplinary proceedings in Turkey. Furthermore, Turkish sports regulations do not contain specific rules for assessing the evidence in match-fixing allegations. Therefore, it can be argued that in Turkey, there is a loophole in disciplinary proceedings as to whether illegally obtained evidence is admissible or not.

Conclusion

The fight against match-fixing is vital for sports governing bodies. This article has demonstrated that UEFA, CAS, and the Swiss Federal Tribunal share the same view that illegally obtained evidence is not always inadmissible when used to evidence an instance of match-fixing. In my view, the Disciplinary Committee disregarded the approach of UEFA, CAS, and the Swiss Federal Tribunal, and instead followed the practice of the Turkish Criminal Court. Because match-fixing is also a breach of the Turkish Act on the Prevention of Violence and Disorder in Sports, it is the duty of criminal courts in Turkey to assess whether the evidence was obtained legally or not. However, as a disciplinary body, the Disciplinary Committee was not forced to deny the admissibility of illegally obtained evidence. I believe it should have followed the established practices of UEFA, FIFA, and the CAS, and assess the available evidence to determine whether it met the comfortable satisfaction standard of proof. Hence, based on the confession recorded in the YouTube video, the Disciplinary Committee should have decided that the individuals concerned, at a minimum, attempted to fix the match and it should have imposed the corresponding sanctions.   

___________________________

[1] Adam Lewis and Jonathan Taylor, Sport: Law and Practice (Bloomsbury, 3rd ed, 2014) 249.

[2] Michael J Beloff et al, Sports Law (Hart Publishing, Second edition, 2012) 188.

[3] Beşiktaş Jimnastik Kulübü v UEFA [2013] CAS 2013/A/3258 [119].

[4] Public Joint-Stock Company “Football Club Metalist” v. Union des Associations Européennes de Football (UEFA) & PAOK FC [2013] CAS 2013/A/3297 [8.8].

[5] Public Joint-Stock Company “Football Club Metalist” v. Union des Associations Européennes de Football (UEFA) & PAOK FC [2013] CAS 2013/A/3297 [2].

Introduction

On 13 September 2017, more than 40,000 people witnessed the successful debut of the football club RasenBallsport Leipzig (RB Leipzig) in the UEFA Champions League (UCL) against AS Monaco. In the eyes of many supporters of the German club, the mere fact of being able to participate in the UEFA's flagship club competition was probably more important than the result of the game itself. This is because, on the pitch, RB Leipzig secured their place in the 2017/18 UCL group stage already on 6 May 2017 after an away win against Hertha Berlin. However, it was not until 16 June 2017 that the UEFA Club Financial Control Body (CFCB) officially allowed RB Leipzig to participate in the 2017/18 UCL alongside its sister club, Austrian giants FC Red Bull Salzburg (RB Salzburg).[1] As is well known, both clubs have (had) ownership links to the beverage company Red Bull GmbH (Red Bull), and therefore it came as no surprise that the idea of two commonly owned clubs participating in the same UCL season raised concerns with respect to the competition's integrity.

The phenomenon of multi-club ownership is nothing new in the world of football. As will be seen below, the English company ENIC plc. (ENIC)[2] established itself as a pioneer in this type of business activity, having acquired in the late 1990s, through subsidiaries, controlling interests in several European clubs, including SK Slavia Prague in the Czech Republic (Slavia), AEK Football Club in Greece (AEK) or Vicenza Calcio in Italy (Vicenza). Apart from ENIC and Red Bull, a more recent example of a global corporation investing in multiple football clubs worldwide is the City Football Group owned by Sheikh Mansour bin Zayed Al Nahyan. In August 2017, the City Football Group acquired 44.3% stake in Girona FC, a Spanish club that had just been promoted to La Liga for the first time in their history, thereby adding a sixth club to its portfolio consisting of Manchester City, New York City, Melbourne City, Yokohama Marinos[3] (Japan) and Club Atlético Torque (Uruguay).[4] Private individuals may also become owners of two or more football clubs, the most prominent examples being Giampaolo Pozzo and his son Gino who are in possession of the Italy's second oldest club Udinese Calcio and the English top-flight club Watford FC respectively,[5] or Roland Duchâtelet, a Belgian millionaire whose dubious management of his five clubs, namely Charlton Athletic (England), Carl Zeiss Jena (Germany), AD Alcorcón (Spain), Sint-Truiden (Belgium) and Újpest FC (Hungary), has been met with considerable opposition. Moreover, clubs themselves have acquired stakes in other clubs, including, for instance, Atlético Madrid's investment in RC Lens (France) and Club Atlético de San Luis (Mexico), or AS Monaco's recent takeover of the Belgian second-division club Cercle Brugge.

Leaving commercial and marketing aspects aside, the investment in multiple football clubs is often driven by the vision of recruiting talented players at low cost, preferably in Latin American or African countries, and subsequently facilitating their development in smaller European clubs to prepare them for the level required at the lead club. Hence, should Manchester City discover in Uruguay a 'new Luis Suárez', it will not take much effort (and money) to convince such a player to join the academy of Club Atlético Torque, especially if he is promised further development at language-barrier-free Girona and sees himself wearing the Citizens' sky blue shirt one day. Along these lines, it could well be argued that the phenomenon of multi-club ownership in fact creates a supply chain for talent.

For reasons suggested above, qualification for a UEFA club competition is normally not the primary objective of clubs like Girona, which find themselves somewhere in the middle of this supply chain. This at least partially explains why, to the best of my knowledge, only twice the prospect of two or more commonly owned clubs participating in the same UEFA club competition became so imminent that it required UEFA's direct intervention. The first intervention dates back to May 1998 when the UEFA Executive Committee adopted a landmark rule entitled 'Integrity of the UEFA Club Competitions: Independence of the Clubs' (Original Rule) in response to Slavia and AEK, both under ENIC's control, having qualified for the 1998/99 UEFA Cup. The Red Bull case, for its part, revolved around the interpretation of 'decisive influence in the decision-making of a club', a concept that could not be found in the Original Rule.

Against this background, this two-part blog will focus on the UEFA rule(s) aimed at ensuring the integrity of its club competitions. The first part will take a closer look at how the Court of Arbitration for Sport (CAS) and the European Commission (Commission) dealt with ENIC's complaints alleging that the Original Rule was incompatible, inter alia, with EU competition law. The second part will then examine the relevant rule as it is currently enshrined in Article 5 of the UCL Regulations 2015-18 Cycle, 2017/18 Season (Current Rule) and describe how the CFCB Adjudicatory Chamber interpreted the aforementioned concept of decisive influence[6] in the Red Bull case. Finally, in light of the conclusions reached by the CFCB Adjudicatory Chamber, the second part of this two-part blog will discuss whether any modification of the Current Rule is desirable.

The ENIC saga: How the Original Rule survived EU competition law scrutiny

Background

It has already been noted that the adoption of the Original Rule was prompted, first and foremost, by the fact that ENIC-controlled Slavia and AEK qualified on sporting merit for the 1998/99 UEFA Cup. However, what needs to be added is that the initial impulse came a season before, when Slavia, AEK and Vicenza all reached the quarter-final of the UEFA Cup Winners' Cup. Although UEFA was fortunate that time as the clubs were not drawn to play against each other and only Vicenza advanced to the semi-final, it learnt its lesson and as a result of this situation adopted robust rules aimed at ensuring the integrity of its club competitions.

The Original Rule

The Original Rule made admission to the UEFA club competitions conditional upon fulfilment of three specific criteria. First, a club participating in a UEFA club competition must have refrained from (i) holding or dealing in the securities or shares; (ii) being a member; (iii) being involved in any capacity whatsoever in the management, administration, and/or sporting performance; and (iv) having any power whatsoever in the management, administration and/or sporting performance of any other club participating in the same UEFA club competition. Second, the Original Rule stipulated that no person could be simultaneously involved in any capacity whatsoever in the management, administration and/or sporting performance of more than one club participating in the same UEFA club competition. Third, an individual or legal entity was prohibited from exercising control over more than one club participating in the same UEFA club competition. The Original Rule further clarified that an individual or legal entity was deemed to have control over a club, and thus the third criterion was not satisfied, where he/she/it (i) held a majority of the shareholders' voting rights; (ii) was authorized to appoint or remove a majority of the members of the administrative, management or supervisory body; or (iii) was a shareholder and single-handedly controlled a majority of the shareholders' voting rights. In principle, under this third criterion, it was permissible for an individual or legal entity to hold up to 49% of the shareholders' voting rights in multiple clubs participating in the same UEFA club competition.

Proceedings before the CAS

It was the third criterion that was applicable to ENIC, a company listed on the London Stock Exchange. Given that both Slavia and AEK were owned as to more than 50% by ENIC, the respective criterion was not satisfied. Consequently, the Committee for the UEFA Club Competitions, a body responsible for monitoring fulfilment of the aforementioned criteria, ruled that only Slavia was eligible to take part in the 1998/99 UEFA Cup on account of its higher club coefficient. Not content with this decision, Slavia and AEK filed a request for arbitration with the CAS on 15 June 1998, challenging the validity of the Original Rule, inter alia, under Articles 81 and 82 of the Treaty Establishing the European Community (TEC) (now Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU)). On the same day, the clubs also lodged a request for interim relief which was eventually granted on 16 July 1998.[7] As a result, UEFA was barred from giving effect to the Original Rule for the duration of the arbitration procedure and both Slavia and AEK were given the green light to participate in the 1998/99 UEFA Cup. On 20 August 1999, the CAS rendered its award in which it upheld the validity of the Original Rule and allowed UEFA to apply the rule in question as of the 2000/01 season.

Before embarking on a comprehensive analysis of the compatibility of the Original Rule with EU competition law, the Panel recognized that participation of two or more commonly owned clubs in the same UEFA club competition creates fertile ground for conflicts of interest, and thus ''represents a justified concern for a sports regulator and organizer''.[8] The Panel then confirmed that EU law was applicable to the case before it as the Original Rule could not benefit from any 'sporting exception'.[9] That being clarified, the Panel moved on to examine the relevant market potentially affected by the Original Rule. It defined the relevant product market as the ''market for ownership interests in football clubs capable of taking part in UEFA competitions'' which would include, on the supply side, ''all the owners of European football clubs which can potentially qualify for a UEFA competition'', and, on the demand side, ''any individual or corporation potentially interested in an investment opportunity in a football club which could qualify for a UEFA competition''.[10] The relevant geographic market, for its part, was confined to the territories of national football federations affiliated to UEFA.[11]

Analysis under Article 81 TEC

Article 81 TEC (now Article 101 TFEU) prohibits ''all agreements between undertakings, decisions by associations of undertakings and concerted practices which […] have as their object or effect the prevention, restriction or distortion of competition within the internal market''. While it is evident that UEFA could be classified as an undertaking[12] or an association of undertakings (representing national football federations) within the meaning of Article 81 TEC, it is less clear whether UEFA could also be regarded, through national football federations representing both professional and amateur clubs, as an association of 'club undertakings'. This question is of crucial importance because if UEFA was not to be regarded as an association of 'club undertakings', the Original Rule would not be considered as the product of a horizontal collusion between clubs and, as a result, would fall outside the scope of Article 81 TEC.[13] The role of UEFA in such a case would not go beyond a mere sports regulator.[14] In this context, Advocate General Lenz insisted in the Bosman case that even though national football federations encompass a sheer number of amateur clubs not engaged in economic activities, this does not alter the conclusion that (i) national football federations are to be regarded as associations of undertakings in accordance with Article 81 TEC; and consequently that (ii) UEFA, through these national football federations, is to be regarded as an association of 'club undertakings'.[15] Although not entirely persuaded by the respective argument, the Panel assumed for the purposes of conducting an analysis under Article 81 TEC that the Original Rule represented a decision by an association of 'club undertakings' and, as such, did not fall outside the scope of Article 81 TEC.[16]

The Panel then turned to the question lying at the heart of the dispute, that is, whether the Original Rule had as its object or effect the prevention, restriction or distortion of competition within the internal market. It found that the Original Rule was only designed to ''prevent the conflict of interest inherent in commonly owned clubs taking part in the same competition and to ensure a genuine athletic event with truly uncertain results'', thereby excluding any anti-competitive object of the Original Rule.[17] With respect to the effect of the Original Rule, the Panel asserted that even though the rule in question may have discouraged an owner who had already been in possession of a high-level European club from acquiring controlling interest in another such club, its overall effect was pro-competitive in that it enabled more undertakings to enter the relevant market, and thus stimulated investment in professional football.[18] Moreover, the Panel was concerned that, in the absence of the Original Rule, high-level European clubs would potentially be concentrated in few hands which would, in turn, lead to an increase in prices for ownership interests in those clubs.[19]

Having found that neither the object nor the effect of the Original Rule was anti-competitive, the Panel was further not required to pronounce itself on whether the Original Rule was necessary and proportionate to the legitimate aim pursued. Yet, it held that the Original Rule was ''an essential feature for the organization of a professional football competition and [was] not more extensive than necessary to serve the fundamental goal of preventing conflicts of interest''.[20] In a similar vein, the Panel could not identify any plausible less restrictive alternative to the Original Rule, and therefore it declared that the Original Rule was proportionate to the stated aim of preventing conflicts of interest.[21]

Based on the above considerations, the Panel ultimately concluded that the Original Rule was compatible with Article 81 TEC.       

Analysis under Article 82 TEC 

Article 82 TEC (now Article 102 TFEU) prohibits abusive conduct by companies that have a dominant position on a relevant market. Since UEFA cannot become an owner of a football club, the Panel maintained that it was not present on the relevant market for 'ownership interests in football clubs capable of taking part in UEFA competitions', and for that reason UEFA could not be held to enjoy a dominant position.[22] Accordingly, the Panel concluded that the Original Rule did not violate Article 82 TEC.  

Proceedings before the Commission

In the wake of the CAS award, ENIC's business strategy suffered a blow. However, the English company was not yet ready to give up and lodged a complaint with the Commission on 18 February 2000, again claiming that the Original Rule infringed Articles 81 and 82 TEC.

In its decision, the Commission relied to some extent on the CAS award, adopting the definition of the relevant market or confirming that the Original Rule could not benefit from any 'sporting exception'. As far as the object of the Original Rule was concerned, the Commission articulated that the rule was not intended to distort competition, but rather to ''avoid conflicts of interest that may arise from the fact that more than one club controlled by the same owner […] play in the same competition''.[23] With respect to the Original Rule's effect, the Commission referred to the Wouters case in which the European Court of Justice held that an agreement between undertakings or a decision of an association of undertakings restricting the freedom to act may nevertheless fall outside the scope of Article 81 TEC, provided that its restrictive effects are inherent in the pursuit of a legitimate objective.[24] Applied to the case before it, the Commission ruled that the restrictive effects of the Original Rule were ''inherent in the pursuit of the very existence of credible pan-European football competitions''.[25] Consequently, the Commission found no violation of Article 81 TEC. Turning to Article 82 TEC, the Commission briefly noted that ''if one were to assume that UEFA enjoys a dominant position in whatever market, the fact that UEFA has adopted such a rule does not appear to constitute in itself an abuse of dominant position''.[26]

Conclusion

It is quite intuitive that the aim of preserving the integrity of the UEFA club competitions should outweigh the restriction introduced by the Original Rule which essentially rendered owners of high-level European clubs unable to acquire controlling interests in similar clubs. However, the fact that the Original Rule appeared bullet-proof under EU competition law does not mean that it was entirely without flaws. As will be seen in the second part of this blog, UEFA later decided to make the Original Rule more stringent since it realized that even if an individual or legal entity does not have de jure control over a club, it may still be able to exercise de facto control over such club.

[1]   RB Salzburg were eliminated by HNK Rijeka in the third qualifying round.

[2]   ENIC is currently a majority shareholder of the English top-flight club Tottenham Hotspur.

[3]   Among the clubs listed, Yokohama Marinos is the only club in which the City Football Group holds a minority stake (20%).

[4]   Furthermore, Manchester City have a formal cooperation agreement with Dutch side NAC Breda.

[5]   The Pozzo family also owned Spanish side Granada FC, before selling the club to a Chinese firm in 2016.

[6]   UCL Regulations 2015-18 Cycle, 2017/18 Season, Article 5.01(c)(iv).

[7]   According to the CAS, the fact that UEFA enacted the Original Rule shortly before the start of the 1998/99 season contravened the principles of good faith, procedural fairness and legitimate expectations. See CAS 98/200 AEK Athens and SK Slavia Prague / UEFA, Award of 20 August 1999, p. 5.

[8]   CAS 98/200 AEK Athens and SK Slavia Prague / UEFA, Award of 20 August 1999, para. 48.

[9]   Ibid. para. 83. According to the well-established jurisprudence of the European Court of Justice, ''the practice of sport is subject to [EU] law only in so far as it constitutes an economic activity''. See Case 36/74 Walrave [1974] ECR 1405, Judgment of 12 December 1974, para. 4. See also Case C-415/93 Bosman [1995] ECR I-4921, Judgment of 15 December 1995, para. 73. On the 'sporting exception', see also Richard Parrish and Samuli Miettinen, The Sporting Exception in European Union Law (T.M.C. Asser Press 2008).

[10] AEK Athens and SK Slavia Prague / UEFA (n 8) paras 101-104.

[11] Ibid. para. 108.

[12] According to the European Court of Justice, ''the concept of an undertaking encompasses every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed''. See Case C-41/90 Höfner [1991] ECR I-1979, Judgment of 23 April 1991, para. 21.

[13] AEK Athens and SK Slavia Prague / UEFA (n 8) para. 88.

[14] Ibid.           

[15] Bosman, Opinion of Advocate General Lenz delivered on 20 September 1995, para. 256.

[16] AEK Athens and SK Slavia Prague / UEFA (n 8) para. 94.

[17] Ibid. para. 113.

[18] Ibid. paras 114-119.

[19] Ibid.

[20] Ibid. para. 136.

[21] Ibid.

[22] Ibid. para. 141. It should be noted, however, that this assertion was later challenged, albeit in the context of FIFA, by the Court of First Instance in the Piau case. The Court held in this case that the fact that FIFA is not itself an economic operator on the market for the services provided by players' agents was ''irrelevant as regards the application of Article 82 TEC, since FIFA is the emanation of the national associations and the clubs, the actual buyers of the services of players' agents''. See Case T-193/02 Piau [2005] ECLI:EU:T:2005:22, Judgment of 26 January 2005, para. 116.

[23] Case COMP/37 806: ENIC / UEFA [2002] Commission, para. 28.

[24] Case C-309/99 Wouters [2002] ECR I-1577, Judgment of 19 February 2002, para. 97.

[25] See Commission decision (n 23) para. 32.

[26] Ibid. para. 45.