Editor's note: Dr Despina Mavromati is an attorney specializing in international sports law and arbitration (Sportlegis Lausanne) and a UEFA Appeals Body Member. She teaches sports arbitration and sports contracts at the University of Lausanne, Switzerland

As the title indicates, this short note only deals with selected procedural issues and questions arising out of the very lengthy Semenya Judgment. In a nutshell, the SFT dismissed Semenya’s appeal to set aside the CAS Award, which had denied the request of Caster Semenya (Semenya, the Athlete) to declare unlawful the Differences of Sex Development (DSD) Regulations of World Athletics (formerly IAAF).[1]

At the outset, it has to be reminded that the CAS Award dealt with the merits of the Semenya case in a final and binding way by rendering an arbitral award according to Article R59 of the CAS Code (and Article 190 of the Swiss Private International Law Act – PILA). Therefore, the SFT did not act as an appellate court but rather as a cassatory court, entitled to review only whether the exhaustively enumerated grounds for annulment set out in Article 190 (2) PILA were met (and provided that they were properly invoked and substantiated in the motion to set aside said award).

The granting - and subsequent lifting - of the suspensive effect of the DSD Regulations

This was one of the few cases in sports arbitration where the SFT granted an urgent interim relief (mesures superprovisionnelles), by ordering World Athletics to suspend the implementation of the DSD Regulations, only to lift such relief shortly afterwards for lack of prima facie “reasonable chances of success”. The fate of the motion to set aside the CAS Award appeared to be ominous already at that stage. Another relatively recent case where the SFT granted interim relief (only to revoke it later) was the Guerrero case. 

Legal interest of a federation in order to “support” its member athletes

According to the admissibility conditions of the Law on the Federal Tribunal (LTF), the party filing a motion to set aside a CAS award must have a current interest worthy of protection. It is e.g. extremely difficult to meet this condition in a case relating to a competition that already took place. It One must also have a “personal” legal interest worthy of protection (see the SFT judgment in the matter of FIFA v. P. Guerrero & WADA). World Athletics contested the “personal” legal interest of Athletics South Africa but the SFT drew the distinction between this case and one of its previous judgments (the Guerrero case), where FIFA had contested a doping-related sanction imposed by the CAS before the SFT. Other than in the Guerrero case, the Athlete’s national federation (ASA) had not previously rendered a decision on the Athlete; moreover, national federations are directly concerned by the DSD Regulations to the extent that they need to actively collaborate with their international federation for their effective implementation (Semenya Judgment, at 4.1.3) This means that, in similar cases in the future, member federations have also standing to challenge the validity of such regulations.

Waivers to appeal to the SFT against CAS awards are invalid, full stop.

The waiver to bring the case before the CAS included in the disputed DSD Regulations was, obviously, invalid to the extent that it was not the “fruit of an explicit consent” by the Athlete. The latter had thus the right to contest the CAS Award before the SFT and this federal jurisprudence has remained unaltered since the groundbreaking Cañas SFT judgment (see the Semenya Judgment at 4.2.4).

The CAS independence revisited – even though not questioned by the parties

Unlike other athletes, Caster Semenya did not attack the CAS Award suggesting the lack of independence or impartiality of the CAS—either as an arbitral institution or as the subjective independence of its arbitrators (see the Semenya Judgment at 5.1.2). The SFT still deemed important to repeat its jurisprudence on the institutional independence and the specialized character of the CAS, to which the parties brought their dispute (see the Semenya Judgment including all references to SFT and ECtHR case law at 5.1.2).

The meaning - and limits - of the SFT leitmotiv “facts established by the CAS Panel are binding upon the SFT”

This is the reason most often invoked by the SFT when declaring inadmissible a particular grievance raised by the parties as a “criticism of appellatory nature” (see also “faits constatés dans la sentence” in the Semenya Judgment at 5.2.2). It is well-known that, unlike the de novo review by the CAS under Article R57 CAS Code, the SFT will not review the facts as they were established by the CAS Panel – save for the most exceptional circumstances (see the Semenya Judgment at 5.2.3 f.).

In the particular circumstances of this case, the facts binding on the SFT did not prevent the latter from reviewing the legality of the DSD Regulations. The SFT could however only consider the facts as they were established in the CAS award and not in the parties’ version of facts, to the extent that these versions deviated from the CAS factual findings (see the Semenya Judgment at 6). As such, the starting point for such analysis (and obviously one of key importance) was the Panel’s factual finding that athletes subject to the DSD Regulations enjoy an “overwhelming” advantage over other female athletes that are not subject to such regulations (see the Semenya Judgment -“avantage insurmontable”- at 9.6.2, at 9.8.2 and 11.1).

Swiss law not applicable in the case at hand

With the international federation based in Monaco (an exception to the rule that international federations are based in Switzerland), the CAS Panel proceeded to the interpretation of the DSD Regulations based on the IAAF Constitution and Rules, the Olympic Charter, and Monegasque law. As such, it held that Swiss law was not applicable to the merits and the SFT confirmed such finding (See the Semenya Judgment at 5.1.1). This, however, does not seem to have any influence on the SFT’s findings to the extent that the latter is not an appellate court and should not evaluate the application of Swiss–or any other—law applied in the specific case (see the Semenya Judgment at 9.1).

Violation of the constitution of the panel for unduly limiting its (full) scope of review

The Athlete raised a—rather unusual—ground for annulment (particularly based on the ground of irregular composition of the tribunal) because the panel had allegedly refused to amend or complement the DSD Regulations, thereby unduly limiting its scope of review. The SFT dismissed the plea holding that the full power of review of the panel related to the control of the proportionality of the DSD Regulations and not their amendment. The SFT dismissed the plea as unfounded, even though it implicitly considered that this plea does not even fall within the scope of irregular composition of the arbitral tribunal under Article 190 (2) (a) PILA but could – at most – constitute a violation of the parties’ right to be heard (see the Semenya Judgment -with further references- at 7).

Violation of substantive public policy – the three pleas invoked by the Athlete

Caster Semenya’s request for annulment of the CAS Award due to a violation of substantive public policy was divided into three pleas: the violation of the principle of prohibition of discrimination, the violation of personality rights of the Athlete and the violation of the Athlete’s human dignity. In this respect, the two conflicting groups were the athletes subject to the DSD Regulations against the athletes who were not subject to the DSD Regulations.

Horizontal Application of the Prohibition of discrimination ?

The prohibition of discrimination as foreseen in Art. 8 (2) of the Swiss Constitution applies to the relation between individuals and the State and has no “horizontal” effect. Sports associations are considered “private” parties notwithstanding their size and thus discrimination resulting from such private parties does not form part of the essential values that form public policy. The “private” character of sports associations has long been an obstacle for athletes when invoking violations of their constitutional guarantees and was also mentioned in this judgment (at 9.4).

Notwithstanding its insistence on the “private” character of sports associations, the SFT does seem to hesitantly develop its jurisprudence. Similar to the principles of interpretation under Swiss law, where the SFT has held that statutes of large federations must be interpreted in accordance with the principles of interpretation of a (states’) legal acts (see e.g. the Kuwait Motorsport SFT Judgment), the SFT acknowledged in the Semenya case that the relationship between an athlete and a large (international) sports association bears similarities to the relationship between an individual and a state (see the Semenya Judgment, at 9.4).

In any event, this interesting debate will have to wait for another judgment since the SFT eventually found that there was no violation of the prohibition of the principle of discrimination by following the argumentation of the CAS Panel, whereby a discriminatory measure can still be allowed if justified by a legitimate objective (in casu the principle of equality of chances). In the case at hand, the SFT relied on the assessment made by the CAS Panel which, after hearing all the arguments raised by the parties, resulted in a reasonable outcome (or at least to a “not unreasonable” outcome) (see the Semenya Judgment, at 9.4 and at 9.8.3.3).

Breach of personality rights and the difference from the Matuzalem judgment

On the breach of personality rights plea, the SFT reiterated its limited scope within the public policy grievance, which requires a clear and severe violations of a fundamental right. Again, the DSD Regulations were not found to fall within the (narrow) scope of Art. 27 Swiss CO, neither from the viewpoint of physical integrity nor from the viewpoint of economic freedom (see the Semenya Judgment, at 10.1).

Other than in the Matuzalem case (the first – and only SFT judgment that annulled a CAS award for violation of substantive public policy so far), the athlete would still be capable of participating in the specified competitions after complying with the conditions set out in the DSD Regulations; moreover, there was no imminent risk of their economic existence as was in the Matuzalem case, whereas the measure was found to be able to achieve the desired goal, were necessary and proportionate (see the Semenya Judgment at 10.5).

Violation of human dignity

The SFT seemed to endorse the CAS Panel’s findings in this respect, and concluded that the impossibility to participate in specific competitions would not amount to a violation of the athlete’s human dignity.

Should the SFT broaden the scope of public policy for sports arbitration? The SFT still says “no”

The scope of substantive public policy according to well-established jurisprudence of the SFT is extremely narrow and such limited review is compatible with the ECtHR (see the Semenya Judgment with references to the Platini Judgment at 5.2.5; see also the Semenya Judgment at 9.8.3.3). The SFT, once again, refused to broaden the scope of the public policy as a ground for annulment of CAS awards. This reminds us of a somewhat different yet analogous attempt of the parties in the SFT Judgment 4A_312/2017. The SFT had reiterated its position that there should be no different notion of public policy tailored to sports arbitration.[2]

Closing remarks: The Athlete’s requests for relief and the inherent limits of arbitration in similar cases

It is interesting to note that the Athlete did not appeal to the CAS against a decision finding her ineligible to compete based on the concrete application of the DSD Regulations. She rather filed a claim with the CAS attacking the legality of the DSD Regulations– for all the reasons mentioned in the CAS award and the SFT judgment.

This resulted in the CAS Panel finding – and the SFT confirming - that the DSD Regulations could not be invalidated as such but left the door open for future challenges: the DSD Regulations may prove disproportionate in their application, if e.g. it should prove impossible to apply them, in case of a specific athlete subject to the DSD Regulations where their application proves impossible or disproportionate (see the Semenya Judgment, at 9.8.3.5).

The Athlete would thus – theoretically – be able to file a new case with the CAS, once the DSD Regulations were implemented and following a potential decision on ineligibility. This shows the difficulty in directly challenging a set of regulations in cases where the hearing authority considers that it is rather their application in a concrete case that may give rise to a specific violation of athletes’ rights. The CAS panel, as an arbitral tribunal, is inherently limited by the scope of the appeal, which in the present case was Caster Semenya’s claim to have the DSD Regulations declared invalid as such.

[1] For an insightful overview of the facts behind the judgment and the findings of the SFT, see Marjolaine Viret, Chronicle of a Defeat Foretold: Dissecting the Swiss Federal Tribunal’s Semenya Decision – in the Asser International Sports Law Blog of 9 September 2020.

Introduction
On 25 March 2015, the Labour Court of Mainz issued its decision in proceedings brought by a German footballer, Heinz Müller, against his (now former) club 1. FSV Mainz 05 (Mainz 05). The Court sided with the player and ruled that Müller should have been employed by Mainz 05 for an indefinite period following his 2009 three year contract with the club which was subsequently extended in 2011 to run until mid-2014. The judgment was based on national law implementing Directive 1999/70 on fixed-term work[1] (Directive) with the latter being introduced pursuant to art. 155(2) TFEU (ex art. 139(2) TEC). On the basis of this article, European social partners’ may request a framework agreement which they conclude to be implemented on the European Union (EU, Union) level by a Council decision on a proposal from the Commission. One of the objectives of the framework agreement,[2] and therefore of the Directive, was to establish a system to prevent abuse arising from the use of successive fixed-term employment contracts or relationships[3] which lies at the heart of the discussed problem.[4] Two clauses enshrined in the framework agreement are of particular relevance to the issue of fixed-term contracts in football, namely, clause 2 which governs the Directive’s scope of application, and clause 5 which concerns measures to prevent abuse. The main questions in this regard are therefore whether fixed-term contracts in football may escape the application of the Directive based on clause 2, or be compatible with it pursuant to clause 5. The present blog post presenting the general European framework for fixed-term contract, will be followed by an in depth case note on the decision in the Müller case.

I. Employment contracts in football and the scope of application of the Directive (clause 2)
The second paragraph of clause 2 names specific types of employment relationships which the Member States, after consultation with social partners, and/or social partners may exclude from the scope of application of the Directive. Clause 2(2) does not contain any explicit provisions which would allow for the possibility of football players’ contracts to be excluded from the scope of the Directive. Also, the wording of the provision indicates that the list of the employment relationships covered by the exception is exhaustive,[5] which in turn precludes the possibility of interpreting the clause in a manner which would accommodate contracts between football clubs and their players.

Clause 2(1), on the other hand, provides that the Directive ‘applies to fixed-term workers who have an employment contract or employment relationship as defined in law, collective agreements or practice in each Member State’. As a result, the definition of ‘worker’ for the purpose of the Directive has no autonomous meaning, but is subject to the national laws of the Member States.[6] Therefore, the manner in which the framework agreement has been drafted opens the possibility for the Member States to exclude some categories of workers from the scope of application of the Directive. It follows, that based on the pure wording of clause 2(1) national authorities could theoretically deprive, inter alia, football players of the protection granted under the Directive by merely classifying them as e.g. service providers.

Despite the autonomy granted to national authorities in this regard, clause 2(1) may not be understood as providing the Member States with unlimited discretion. Recital 17 of the Directive’s preamble clearly states that the Member States are to define some of the terms included in the framework agreement ‘provided that the definitions in question respect [its content].’ Moreover, art. 2 of the Directive stipulates that ‘the Member states are […] required to take any necessary measures to enable them […] to guarantee the results imposed by [the] Directive.’[7] The flexibility granted to national authorities is further limited by the need to ensure the effective implementation of EU-derived rights. The Court of Justice of the European Union’s (CJEU, Court) rulings set the limits to the Member States’ discretion in the implementation of clause 2(1). In this regard, the CJEU ruled in Del Cerro[8] that the Directive is applicable to ‘all workers providing remunerated services in the context of a fixed-term employment relationship linking them to their employer.’[9] The Court also stated that ‘in reserving to Member States the ability to remove at will certain categories of persons from the protection offered by [the Directive] and the [framework agreement], the effectiveness of those Community instruments would be in jeopardy as would their uniform application in the Member States.’[10] Also, in the opinion of Advocate General (AG) Maduro the concept of ‘worker’ for the purpose of the Directive must be interpreted in a way which complies with its objectives.[11]  According to the AG, the Member States should not be allowed to rely on the ‘formal’ or ‘special’ nature of the rules applicable to certain employment relationships in order to exclude them from the scope of application of the Directive.[12] Consequently, excluding a specific group from the benefit of protection afforded by the Directive can only be accepted if the competent national court decides that the nature of the employment relationship concerned is ‘substantially different from that between employees falling, according to national law, within the category of workers’.[13]

A similar reasoning to the one used in Del Cerro has been applied in Sibilio[14] where the Court, relying on recital 17 and the need to preserve the Directive’s effectiveness, ruled that in the light of the objectives pursued by the framework agreement the formal classification by the national legislature cannot rule out that a person must be recognized as a ‘worker’ if such a formality is merely notional, and thus conceals the real employment relationship.[15] Therefore, in determining what constitutes an employment contract or employment relationship under national law or practice, and thus when determining the scope of application of the Directive, the definition of these concepts may not result in an arbitrary exclusion of a category of persons from the protection offered by the Directive.[16] The CJEU leaves it for the national courts to conclude whether a person falls within the definition of a ‘worker’ based on the characteristics of the work conducted and the circumstances in which it is carried out.[17] Moreover, in Fiamingo[18] and Mascolo[19] the CJEU later confirmed that no particular sector is excluded from the scope of application of the Directive.[20]

Even though the issue of who is to be considered as a ‘worker’ pursuant to the Directive does not fall within the competence of the EU, and thus, the definition established for the purpose of the internal market provisions may not be directly applied in the context of the Directive, the autonomous Union concept of ‘worker’ and the case-law of the CJEU provide guidelines and support for the national courts of the Member State. In this regard, the CJEU stated in Lawrie-Blum[21] that ‘the essential feature of an employment relationship […] is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration.’[22] The Court elaborated on the matter in Trojani[23] where it ruled that ‘any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a worker’.[24] It cannot be denied that footballers meet the criteria set out in the case-law. The activity they pursue is genuine, they conduct their work under supervision of others, namely clubs and coaches, and receive, often hefty, remuneration.[25] It is also important to add here that already in Bosman[26] the CJEU provided, first, that the existence of, or the intention to create, an employment relationship is the only requirement necessary for the purposes of the application of EU provisions concerning the free movement of workers, and second, that football players could be regarded as workers for the purpose of (now) art. 45 TFEU.[27] This particular finding has been directly confirmed in Olympique Lyonnais.[28] It is not precluded that such considerations should influence national courts in their findings concerning ‘characteristics’ and ‘circumstances’ of the activity exercised by football players should a question in this regard arise. As a result, it seems unlikely that contracts between footballers and their clubs could fall outside the scope of the Directive.

II. Employment contracts in football and measures to prevent abuse (clause 5)
Due to the fact that the social partners considered that contracts for an indefinite period are the general form of employment,[29] the Directive sets out specific measures which serve to secure one of the Directive’s main goals, i.e. prevention of abuse arising from the use of successive fixed-term employment contracts. In this regard, and pursuant to clause 5, the Member States after consultation with social partners, and/or the social partners, are obliged to establish at least one of the measures provided, i.e., i) objective reasons justifying renewal of fixed-term contracts or relationships; ii) the maximum total duration of successive fixed-term employment contracts or relationships; iii) the number of renewals of such contracts or relationships. This particular obligation exists when there are no equivalent legal measures already in place in the national legal orders. Moreover, in establishing the measures the national authorities are to take into account the needs of specific sectors and/or categories of workers. Since the objective reasons justification is the only measure which could facilitate the maintenance of the current status quo relating to fixed-term contracts in football, it is necessary to focus on this particular provisions.

A. Interpretation of ‘objective reasons’ justification in the CJEU’s case-law
The CJEU has had a chance to rule on the interpretation of clause 5 ‘objective reasons’ on a number of occasions. Consequently, for the purpose of relying on the justification the employer not only needs to be eligible to invoke ‘objective reasons’ defence as provided for under national law, but also the national implementing measure needs to comply with the conditions established in the Court’s case-law. In this regard, the CJEU ruled in Adeneler[30] that the concept of ‘objective reasons’ refers to ‘precise and concrete circumstances characterising a given activity, which are therefore capable in that particular context of justifying the use of successive fixed-term employment contracts.’[31] The Court further elaborated on the matter by providing that ‘[those] circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks […].’[32] As a result, national provisions may not be of a purely formal nature, but must justify recourse to successive fixed-term contracts ‘by the presence of objective factors relating to the particular features of the activity concerned and to the conditions under which it is carried out […].’[33] Thus, ‘a national provision which merely authorises recourse to successive fixed-term employment contracts in a general and abstract manner […]’[34] does not fulfil the criteria. In this regard, the Court added that ‘recourse to fixed-term employment contracts solely on the basis of a general provision of statute or secondary legislation, unlinked to what the activity in question specifically comprises, does not permit objective and transparent criteria to be identified in order to verify whether the renewal of such contracts actually responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose’.[35] Moreover, the CJEU also indicated that national laws which allow for the use of successive fixed-term contracts in the context of employers’ needs which are not of a limited duration, and thus temporary, but de facto ‘fixed and permanent’ will not be compatible with the Directive.[36] The above-mentioned findings of the Court have been confirmed in a number of judgments such as Angelidaki[37]. This case concerned individuals who claimed that their fixed-term contracts with the local authorities, which the latter decided not to extended or renew upon their expiry, should have been recognized as contracts of indefinite period as the work performed was of a ‘fixed and permanent’ nature. Reliance on the criteria provided by the CJEU in Adeneler is also evident in Mascolo in which the Court addressed the issue of compatibility with the Directive of Italian national law on the basis of which teachers recruited in schools administered by public authorities and working as temporary replacement staff were employed under successive fixed-term contracts. A similar issue to the one in Mascolo emerged in Kücük[38] which concerned a clerk in the court office who was employed on a number of successive fixed-term contracts as a replacement for several permanent employees due to temporary leave having been granted to the clerks employed for an indefinite duration. Here again the CJEU referred to the established case-law and clarified that temporary needs of employers also cover the need for replacing employees on leave even in situations where the tasks assigned to fixed-term worker are part of the undertaking’s usual activities.[39] This was the result of the need for replacement staff being of a temporary nature.[40] As the social partners themselves indicated that ‘fixed-term contracts are a feature of employment in certain sectors, occupations and activities which can suit both employers and workers’[41] it is thus necessary to evaluate whether objective reasons for the justification of fixed-term contracts in football might be identified.

B. Existence of ‘objective reasons’ justifying fixed-term contracts in football
With regard to the above, it can be argued that the specific circumstances inherent to the exercise of football as a profession are susceptible to justify the successive use of fixed-term employment contracts. In that respect, uncertainty as to players’ performance has always been an inseparable element of not only football but sports in general. No matter what level of performance a player displays over a particular span of time, it can never be excluded, rather it can be expected with certainty, that a (significant) drop in performance will take place. This concerns especially ‘older’ players, i.e. those in their thirties. It is common knowledge that after reaching a certain age athletes’ physical condition deteriorates, thus making it impossible for them to maintain a steady level of performance, and thus, to contribute to the combined efforts of the team they represent. Furthermore, FIFA transfer rules limit players’ possibility of terminating contracts. Art. 14 of the 2015 Regulations on the Status and Transfer of Players allows for termination to take place where a just cause exists. In this respect, introduction of contracts for indefinite period could open the possibility for players to rely on statutory termination periods in order to dissolve contracts, and thus, to become free agents. Consequently, football clubs, and especially those which focus on youth development, could be deprived of a substantial part of their income from transfer fees. This in turn could, first, limit the incentives for training young players, and second, would make it even easier for the richer clubs to acquire talents with negative consequences on competitive balance in football. Moreover, provision 43.02 of the Regulations of the UEFA Champions League 2015-18 Cycle provides that clubs may only register 25 players for the purpose of playing in the competition. Forcing clubs to sign players on indefinite contracts, combined with a limit placed on the amount of footballers that can be registered, will make it even more challenging for youngsters to enter the first team. Furthermore, as it is usually more difficult for the employer to terminate a contract, football clubs could be (indirectly) forced to keep those footballers who no longer fit the team’s tactics or club’s policy (e.g. focus on youth). In this respect, establishing contracts for an indefinite period as the industry’s standard could again negatively influence the chances of young players signing a contract. Furthermore, clubs need to be able to adjust their squads and establish stable teams in order to effectively compete on both national and international levels, and to retain, attract and satisfy their supporters. In our view, fixed-term contracts, by their very nature, are therefore better suited to address the specific characteristics of football as a sport, and as an industry.

C. Possible obstacles to the application of ‘objective reasons’ justification to contracts in football
Nevertheless, even if it is accepted that successive fixed-term contracts between footballers and their clubs may be justified based on objective reasons, it still remains that the justification does not necessarily apply. First, the Member States are free to choose between the clause 5 measures. Consequently, the very possibility of relying on objective reasons depends on the manner in which the Directive has been implemented by the Member States.[42] Second, national implementing measures must comply with the requirements established by the CJEU. Therefore, the Member States that chose to make use of the objective reasons justification are obliged to establish objective factors on the basis of which the application of the justification will be assessed. A general provision of a purely formal nature which does not provide for such objective factors will not be deemed compatible with EU law. In this regard, the criteria or factors established under national law must be capable of being applied to contracts in football. Consequently, national law implementing clause 5 objective reasons needs to be drafted in a manner which allows football contracts to be considered for the purpose of applying the justification, which might be problematic given the fact that the issue has been largely neglected. Third, it has also been established by the CJEU that national laws which allow for the use of successive fixed-term contracts in the context of employers’ needs which are ‘fixed and permanent’ will not be compatible with the Directive. It would go contrary to the objectives pursued by clause 5, i.e. prevention of abuse arising out of successive fixed-term contracts, to allow renewal of such contracts to cover ‘fixed and permanent’ needs of employers.[43] Therefore, if the ‘needs’ of football clubs are considered to be of such a ‘fixed and permanent’ character, and it may be argued that they are, then reliance on the justification would also be endangered.

Concluding remarks
The ruling of the Mainz court questioned, at least in Germany, the current arrangements whereby contracts for a definite period have been established as the industry’s worldwide standard.[44] Consequently, it cannot be excluded that the judgment will once again feed the never-ending discussion on the impact of European law on sport, the debate on the notion of specificity of sport, and more generally, the boundaries between the European Union’s intervention in sport and the autonomy of sports governing bodies. It is safe to assume that considerable controversies will arise in case the decision of the court in Mainz is upheld at higher instances. This, however, will not be the making of the courts, but to a large extent the result of the issue being neglected for years. After all, the Directive was adopted already sixteen years ago and contains no provisions allowing sport to be exempted from its scope. It follows that based on its wording it must also apply to contracts concluded between footballers and clubs. Even though it is possible to justify the successive use of fixed-term contracts on the basis of objective reasons, this depends on the national implementing measures, which do not necessarily provide for such a possibility or are fit to accommodate football contracts.

[1] Council Directive 1999/70/EC concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP [1999] OJ L 175/43 (Directive)

[2] Annex to the Directive, ETUC-UNICE-CEEP Framework Agreement on Fixed-Term Work (Framework Agreement)

[3] Framework Agreement, recital 14 and clause 1

[4] Clause 1 of the Framework Agreement also mentions a second goal, namely, the improvement of quality of fixed-term work by ensuring the application of the principle of non-discrimination. In this regard, Recital 9 of the Framework Agreement adds that the instrument is to contribute to the improvement of equality of opportunities between men and women

[5] Philippa Watson, EU Social and Employment Law (2^nd edn, Oxford University Press 2014) p 241; see also case C-212/04 Konstantinos Adeneler en anderen tegen Ellinikos Organismos Galaktos (ELOG) [2006] ECR I-6057 (Adeneler), para 57

[6] However, the definition of what constitutes a fixed-term employment has an EU definition. See Directive, clause 3(1)

[7] See also art. 288 TFEU; Adeneler, para 68

[8] Case C-307/05 Yolanda Del Cerro Alonso v Osakidetza-Servicio Vasco de Salud [2007] ECR I-7109 (Del Cerro)

[9] Ibidem, para 28

[10] Ibidem, para 29

[11] Del Cerro, Opinion of AG Maduro, para 14

[12] Ibidem, para 15

[13] Ibidem; see also case C-393/10 Dermod Patrick O’Brien v Ministry of Justice [2012] published in the electronic Reports of cases (O’Brien), para 51

[14] Case C-157/11 Giuseppe Sibilio v Comune di Afragola [2012] published in the electronic Reports of cases (Sibilio)

[15] Ibidem, para 49

[16] Ibidem, para 51; see also O’Brien, para 51

[17] Sibilio, para 52

[18] Joined cases C-362/13 REC, C-363/13 REC and C-407/13 REC Maurizio Fiamingo, Leonardo Zappalà and Francesco Rotondo and Others v Rete Ferroviaria Italiana SpA [2014] not yet published (Fiamingo)

[19] Joined cases C-22/13, C-61/13 to C-63/13 and C-418/13 Raffaella Mascolo, Alba Forni and Immacolata Racca v Ministero dell'Istruzione, dell'Università e della Ricerca, Fortuna Russo v Comune di Napoli and Carla Napolitano and Others v Ministero dell’Istruzione, dell’Università e della Ricerca [2014] not yet published (Mascolo)

[20] Fiamingo, para 38; Mascolo, para 69

[21] Case C-66/85 Deborah Lawrie-Blum v Land Baden-Württemberg [1986] ECR 2121

[22] Ibidem, para 17

[23] Case C-456/02 Michel Trojani v Centre public d'aide sociale de Bruxelles (CPAS) [2004] ECR I-7573

[24] Ibidem, para 15

[25] For a more detailed discussion see Stefaan Van den Bogaert, Practical Regulation of the Mobility of Sportsmen in the EU Post Bosman (Kluwer Law International, The Hague 2005) pp 57-59

[26] Case C-415/93 Union royale belge des sociétés de football association ASBL v Jean-Marc Bosman, Royal club liégeois SA v Jean-Marc Bosman and others and Union des associations européennes de football (UEFA) v Jean-Marc Bosman [1995] ECR I-4921

[27] Ibidem, paras 74, 87, 90

[28] Case C-325/08 Olympique Lyonnais SASP v Olivier Bernard and Newcastle UFC [2010] ECR I-2177 (Olympique Lyonnais), para 29; Olympique Lyonnais, Opinion of AG Sharpston, para 38

[29] Framework Agreement, recital 6; see also Adeneler, para 61

[30] See supra note 5

[31] Ibidem, para 69

[32] Ibidem, para 70

[33] Ibidem, para 72

[34] Ibidem, para 71

[35] Ibidem, para 74

[36] Ibidem, para 88

[37] Joined cases C-378/07 to C-380/07 Kiriaki Angelidaki and Others v Organismos Nomarchiakis Autodioikisis Rethymnis, Charikleia Giannoudi v Dimos Geropotamou and Georgios Karabousanos and Sofoklis Michopoulos v Dimos Geropotamou [2009] ECR I-3071 (Angelidaki)

[38] Case C-586/10 Bianca Kücük v Land Nordrhein-Westfalen [2012] published in the electronic Reports of cases

[39] Ibidem, para 38

[40] Ibidem

[41] Framework Agreement, recital 8

[42] See e.g. Fiamingo, para 61

[43] See e.g. Angelidaki, para 103; Angelidaki, Opinion of AG Kokott, paras 106-107;

[44] In this regard art. 18(2) of 2015 FIFA’s Regulations on the Status and Transfer of Players stipulates that ‘[t]he minimum length of a contract shall be from its effective date until the end of the season, while the maximum length of a contract shall be five years. Contracts of any other length shall only be permitted if consistent with national laws’