Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

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

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

 


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



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

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

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

Download the full Programme and register HERE.


The Team:

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

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




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

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

 

1.     Sport Nationalism is Politics

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

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

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


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

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

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



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

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


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







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

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


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

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


Speakers


Participation is free, register HERE.

New Video! Zoom In on World Anti-Doping Agency v. Russian Anti-Doping Agency - 25 February

Dear readers,

If you missed it (or wish to re-watch it), the video of our third Zoom In webinar from 25 February on the CAS award in the World Anti-Doping Agency v. Russian Anti-Doping Agency case is available on the YouTube channel of the Asser Institute:



Stay tuned and watch this space, the announcement for the next Zoom In webinar, which will take place on 31 March, is coming soon!

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

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

 

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

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

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

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


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

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


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


Participation is free, register HERE.

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

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

 

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

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

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


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

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

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

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

Asser International Sports Law Blog | Policing the (in)dependence of National Federations through the prism of the FIFA Statutes. By Tine Misic

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

Policing the (in)dependence of National Federations through the prism of the FIFA Statutes. By Tine Misic

…and everything under the sun is in tune,

but the sun is eclipsed by the moon…[1] 


The issue

Ruffling a few feathers, on 30 May 2015 the FIFA Executive Committee rather unsurprisingly, considering the previous warnings,[2] adopted a decision to suspend with immediate effect the Indonesian Football Federation (PSSI) until such time as PSSI is able to comply with its obligations under Articles 13 and 17 of the FIFA Statutes.[3] Stripping PSSI of its membership rights, the decision results in a prohibition of all Indonesian teams (national or club) from having any international sporting contact. In other words, the decision precludes all Indonesian teams from participating in any competition organised by either FIFA or the Asian Football Confederation (AFC). In addition, the suspension of rights also precludes all PSSI members and officials from benefits of any FIFA or AFC development programme, course or training during the term of suspension. This decision coincides with a very recent award by the Court of Arbitration for Sport (CAS) in this ambit, which shall be discussed further below.[4]

The former decision, substantiated upon the alleged governmental infringement of the independence of PSSI, is the latest in a line of similar decisions adopted by FIFA in recent years. It succeeds inter alia the suspension of the Nigerian Football Federation and subsequent non-recognition of its General Assembly decisions,[5] and the suspensions of the Cameroonian Football Association[6], the Football Federation of Belize,[7] the Kenya Football Federation,[8] and the Islamic Republic of Iran Football Federation.[9]

The common denominator of all these decisions is the alleged impediment of third parties, usually governments or their related bodies, in the affairs of national football associations. In the Indonesian case, the trigger was the imposition of additional licensing criteria for football clubs by BOPI, an agency of the Indonesian Ministry of Youth and Sports, which resulted in two clubs (Arema and Persebaya) being precluded from competing in the Indonesian Super League (ISL) and subsequent measures adopted by the ministry aimed at relieving PSSI of all of its responsibilities.[10] While in the Nigerian case, an initial High Court injunction prevented the elected Executive Committee from taking office, and a later intervention from the Nigerian Department of State Security Service (SSS), resulted in the suspension of the Nigerian Football Federation[11] and subsequently in the non-recognition of its General Assembly decisions,[12] the other cited cases include violations in the form of, among others, “blatant government interference”,[13] non-provision of security services from government forces,[14] and violation of the independence of the decision-making process of the national football governing body.[15] 


Grounds for intervention by FIFA

The normative basis for the aforementioned interventions lies primarily within Articles 13, 14 and 17 of the FIFA Statutes.[16] The Members’ obligation of an independent management of their affairs is embedded in Article 13(1)(i), which states that: ”Members have the following obligations... to manage their affairs independently and ensure that their own affairs are not influenced by any third parties...” Strengthening that notion, Article 17(1) provides that: “Each Member shall manage its affairs independently and with no influence from third parties.” Furthermore, the second paragraph of Article 17 explicitly points out that all the bodies need to be elected or appointed within each respective Member, which prima facie appears even more stringent than Article 7 bis of the UEFA Statutes, that constitutes:”...their executive body is freely elected and that their other bodies are elected or appointed in a completely independent way.”[17]

Enjoying full discretion that stems from its Statutes, FIFA acts upon information received about the alleged violations, usually from the Members themselves. Prior to the adoption of a decision, a “prevention” phase takes place, during which FIFA, through means of correspondence with respective Members or/and third parties involved, addresses the alleged infringements and usually allows for a deference period for compliance with specific conditions. Members and/or third parties are warned that non-compliance may result in possible sanctions. Article 13(2) of the Statutes expressly provides that: “Violation of the above-mentioned obligations by any Member may lead to sanctions provided for in these Statutes.”

One of the most daunting repercussions FIFA may avail itself of is the suspension of a Member. In accordance with Article 14(1) of the Statutes, the primary responsibility for suspending a Member lies with the Congress. However, and as seen in the cases cited above, when violations are deemed to be so serious to require prompt attention, the Executive Committee or even the Emergency Committee may step in and adopt the relevant decision.[18] If not lifted beforehand, such a decision must be confirmed by a three-quarter majority at the next Congress, otherwise it is automatically lifted. A suspension leads to a loss of all membership rights, which effectively prevents other Members from entertaining any sporting contact with the suspended Member. Moreover, the suspension does not preclude the Disciplinary Committee from imposing further sanctions (e.g. fines, return of awards, deduction of points, etc.).[19]

Another measure for addressing an eventual non-compliance with the obligation of independent management of affairs is the non-recognition of wrongfully elected bodies or decisions passed by such bodies in accordance with Article 17(2) of the Statutes. In other words, FIFA has the authority not to recognize an election of a body of one of its Members, if such an election lacks uncompromised independence vis-à-vis third parties, as was the case with the Nigerian Football Federation.

Lastly, it is also worth mentioning that sanctions may be imposed regardless of the grounds and fault for interference of third parties since Article 13(3) of the Statutes, by going beyond the actual interference, provides that: “Violations of par. 1(i) may also lead to sanctions even if the third-party influence was not the fault of the Member concerned.” This basically means that FIFA shall not entertain explanations of third party interventions that may possibly even be justified under the provisions of national law. 


To comply, or not to comply – the CAS escape route

Since a suspension decision virtually ostracises and isolates a Member, a valid point to raise is, whether apart from yielding and fulfilling the imposed conditions, other means remain available to the disgraced Member to challenge such a decision. The same could be said for the situation pertaining to the non-recognition of elected bodies of particular Members.

In accordance with Article 66 of the Statutes any dispute arising between FIFA and its Members shall be resolved by CAS applying the relevant FIFA regulations and subsidiarily Swiss law. The exclusive jurisdiction of CAS is further strengthened in Article 67 of the Statutes which also outlines the procedural requirements for an appeal against a final decision passed by one of the FIFA bodies. Moreover, the Members explicitly agree not to avail themselves of recourse to ordinary courts of law, which significantly narrows their options down.[20]

Given that jurisprudence in named cases is relatively scarce, it is worth having a closer look at the above mentioned award rendered by CAS in the joined cases brought before it by the Nigerian Football Federation.[21] Notwithstanding the previous FIFA decision to suspend the appellant, which was later lifted, the form of relief sought with the appeal was the annulment of two decisions in the form of letters, addressed at the appellant by FIFA. Considering the Court’s conclusion, stemming from the relevant CAS jurisprudence,[22] to dismiss the appeal against the second letter because it did not constitute an appealable decision since it did not contain a ruling affecting the rights of the appellant, hence lacking the animus decidendi,[23] the onus of the award was on the first challenged letter.

In its preliminary remarks the Panel narrowed down the subjective and the objective scope of the review saying that it:”...may only assess de novo, putting itself in FIFA’s place, whether FIFA had sufficient factual and legal grounds, in terms of Article 17 of its Statutes, to adopt the decisions allegedly set forth in the letters challenged by the Appellant.[24] By abstaining from assessing the eventual legality of the third party infringement, and despite harbouring some doubts about the (non)compliance of the elections with the national law, it further stated that:”...this Panel may not assess the validity of the various NFF elections on the basis of the NFF rules or of Nigerian law, because such appraisal falls outside the scope of FIFA’s authority under Article 17 of its Statutes and, thus, falls outside of the Panel’s scope of review.[25]

By observing that none of the parties challenged the Court’s jurisdiction, applying the FIFA regulations and additionally Swiss law pursuant to Article R58 of the CAS Code, and by dismissing the Respondent’s arguments pertaining to the admissibility and the Appellant’s active standing, the Panel addressed the legitimacy of FIFA’s non-recognition of the elections pursuant to Article 17 of the Statutes in the merits of the award.[26]

As per the legal grounds of the decision, the Panel stressed that: “The purpose of Article 17 is to grant FIFA the power to not recognize an election where the member association’s electoral process does not guarantee the complete independence of the election.[27] It went further saying: “...the Panel is of the view that the requirement of “complete independence” found in para. 2 must be understood in the light of para. 1 of Article 17, forbidding “influence from third parties”. Accordingly, an electoral process does not guarantee such complete independence where the election is not managed in a totally independent manner and, in particular, where it is influenced by third parties of any kind (e.g. government officials or bodies).[28]

Having established FIFA’s authority, the Panel subsequently assessed the relevant evidence submitted by the parties. After determining the relevant factual circumstances, the Panel noted that the intervention from the State Security Services (SSS) influenced the unfolding of the election and consequently of the General Assembly itself, constituting a manifest insufficiency of the independence of the election from the influence of third parties pursuant to Article 17 of the Statutes.[29] The appeal was thus duly dismissed on merits as well.

By dismissing the appeal, and in spite of recognizing the connection of the dispute with “a longstanding struggle occurring in Nigerian football between different personalities and factions fighting for leadership within the NFF”,[30] the Court, by setting a precedent to a certain extent, distanced itself from assessing the compliance of the interference with national law, hence virtually affirming FIFA’s discretion in the evaluation of the circumstances leading to its intervention, which appears to leave an eventual appeal by the Indonesian Football Federation with very slim chances of success. 


Quis custodiet ipsos custodes?[31]

When it comes to independence and third party influence issue, the Members are subject to instant scrutiny from FIFA and are swiftly held accountable, even when they hold no responsibility for a third party intervention, as may be seen in the above cited cases. The same cannot be said when the situation is reversed. FIFA is often not submitted to the same levels of accountability checks as those who are affected by its decisions.[32]

While in some instances FIFA’s prompt intervention appears well-grounded, since interference from a third party is manifestly ill-founded, as may be seen in the case of the Nigerian Football Federation (interventions from State Security Forces and unidentified armed individuals seem to go way beyond the borders of necessity, and can hence hardly be justified), other cases, namely the latest suspension of the PSSI, show that FIFA may have been slightly too quick when pulling the trigger. All the more so, given the circumstantial background of the case (e.g. pressing issues related inter alia to financial, tax and ownership issues of the clubs participating in national leagues which the PSSI, despite previous warnings, was unable or unwilling to cope with, and which in some extreme cases resulted in players losing their lives due to lack of medical care owed to arrears of health care contributions by the clubs), and the government’s intervention could arguably to a certain extent be seen as necessary.[33]

However, as seen above, under the existing rules FIFA is not inclined to look beyond the mere interference of third parties and verify whether such actions might be justified, thus possibly breaching the principle of proportionality which is recognized as a general principle by CAS.[34] Since such discretion seems to have been condoned by the latest CAS decision,[35] one may wonder whether there is actually any room for a more thorough and systematic factual assessment of the background of such interferences in the light of a possible justification, which inevitably raises questions of the eventual (over)restrictive nature of the relevant Statutes provisions themselves. Furthermore, the fact that any government intervention, regardless of the eventual acceptability and consideration of local specificities of each respective Member, is to be seen as a punishable infringement, puts the issue within the frame of the perpetual conundrum of the legitimate boundaries of the lex sportiva.

Since FIFA is virtually accountable to no-one from the hierarchical point of view, and given that governments, with the exception of the Swiss government, have no supervisory powers over it (some would argue that FIFA may itself be seen as a government),[36] the only plausible route for the assessment of the proportionality of the Statutes would seem to be through the legal accountability channel, using EU law, especially its provisions on competition and internal market.[37] In fact, given the precedents (e.g. Charleroi)[38] and the recent legal challenge of FIFA’s decision to ban Third-Party Ownership,[39] these rules appear to have become an increasingly important tool to hold the organization accountable, regardless of the latest developments regarding the prosecution of its officials.[40] A further analysis as to whether such a route remains available to potential appellants from outside of the European Union would, however, go beyond the scope of this paper. 


Conclusion

As presented throughout this brief overview, FIFA has seemingly developed a zero-tolerance policy for any governmental interference regarding the affairs of its Members, thus arguably safeguarding their independence. It has consistently availed itself of one of the most stringent corrective measures for alleged violations envisaged by its Statutes, suspending the non-compliant Members, hence often provoking strong emotional response within the pertinent countries.[41] Whereby such sanctions might be deemed necessary in certain cases, non-consideration of factual background and eventual justifications in others has led to accusations of double standards,[42] and raised questions of proportionality of the relevant Statutes provisions and the borders of the rules governing “purely sporting issues”.

The outcome of the deadlock in the latest case of PSSI remains to be seen, with the government’s intention to thoroughly reform the Indonesian football suggesting that a swift solution might not quite lie around the corner.[43] Given that compliance with the imposed conditions appears to be the route that will be taken in this case, and as long as provisions of the Statutes are not submitted to scrutiny of a competent judicial body, arguably in the form of the European Court of Justice, any future third party interferences shall most likely continue to be dealt with strictly by FIFA and the non-compliant Members will keep finding themselves “on the dark side of the moon”.[44]



[1] Pink Floyd, Eclipse (Dark Side of the Moon, EMI, 1973).

[2] Letter of FIFA to the Republic of Indonesia Minister of Youth and Sports, written in Zurich and sent on 10 April 2015.

[3] Decision of the FIFA Executive Committee: Suspension of the Indonesian Football Federation (PSSI), adopted in Zurich on 30 May 2015.

[4] Joined cases CAS 2014/A/3744 and CAS 2014/A/3766 Nigerian Football Federation v. FIFA, award of 18 May 2015.

[5] Decision of the FIFA Emergency Committee: Suspension of the Nigerian Football Federation (NFF), adopted in Zurich on 9 July 2014.

[6] Decision of the FIFA Emergency Committee: Suspension of the Cameroonian Football Association, adopted in Zurich on 4 July 2013 (FIFA Circular no. 1367, Zurich, 4 July 2013).

[7] Decision of the FIFA Emergency Committee: Suspension of the Football Federation of Belize, adopted in Zurich on 17 June 2011.

[8] Decision of the FIFA Emergency Committee: Suspension of the Kenya Football Federation, adopted in Zurich on 2 June 2004.

[9] Decision of the FIFA Emergency Committee: Suspension of the Islamic Republic of Iran Football Federation (IRIFF), adopted in Zurich on 23 November 2006.

[10] FIFA Decision of 30 May 2015, cited supra note 3.

[11] FIFA Decision of 9 July 2014, cited supra note 5.

[12] Letter of FIFA to Nigerian Football Federation (NFF), written in Zurich and sent on 29 August 2014.

[13] FIFA Decision of 2 June 2004, cited supra note 8.

[14] FIFA Decision of 17 June 2011, cited supra note 7.

[15] FIFA Decision of 23 November 2006, cited supra note 9.

[16] FIFA Statutes (Regulations Governing the Application of the Statutes, Standing Orders of the Congress), adopted in São Paulo on 11 June 2014.

[17] UEFA Statutes (Rules of Procedure of the UEFA, Congress Regulations governing the Implementation of the UEFA Statutes), adopted in Astana on 24 March 2014.

[18] FIFA Statutes, cited supra note 16, Art. 33.

[19] Ibid., Arts. 63, 65.

[20] Ibid., Art. 68.

[21] Nigerian Football Federation v. FIFA, cited supra note 4.

[22] Case CAS 2005/A/899 FC Aris Thessaloniki v. FIFA & New Panionios N.F.C., award of 15 July 2005, para. 12; Case CAS 2004/A/659 Galatasaray SK v. Fédération Internationale de Football Association (FIFA) & Club Regatas Vasco da Gama & F. J., award of 17 March 2005, paras. 23-25.

[23] Nigerian Football Federation v. FIFA, cited supra note 4, paras. 192,196.

[24] Ibid., para. 160.

[25] Ibid., para 160.

[26] Ibid., paras. 160-182.

[27] Ibid., para. 200.

[28] Ibid., para. 200.

[29] Ibid., paras. 203-211.

[30] Ibid., para. 213.

[31]Who guards the guardians?” (translation mine); Juvenal, Satires, (Book II, Satire VI, 1st and early 2nd centuries AD), lines 347–8.

[32] R. Pielke Jr., How can FIFA be held accountable? (Sport Management Review, Issue 16, 2013), pp. 258.

[33] FIFPro, Death of Mendieta must be the turning point for Indonesia, http://www.fifpro.org/en/news/death-of-mendieta-must-be-turning-point-for-indonesia (last visited 28 June 2015).

[34] See inter alia Cases CAS Arbitration CAS 2005/A/830 S. v. FINA, award of 15 July 2005, CAS 2009/A/2012 Doping Authority Netherlands v. N., award of 11 June 2010, CAS 2012/A/2740 Marcelo Carracedo v. Fédération Internationale de Football Association (FIFA), award of 18 April 2013.

[35] Nigerian Football Fedration v. FIFA, cited supra note 4.

[36]S. Bradley, FIFA reforms face resistance – and huge support (swissinfo.ch, 5 December 2012), http://www.swissinfo.ch/eng/football-scandals_fifa-reforms-face-resistance---and-huge-support/34067104 (last visited 28 June 2015).

[37] R. Pielke, cited supra note 32, pp. 259-262.

[38] Case A/05/03843, SA Sporting du Pays de Charleroi ao v FIFA, Tribunal de Commerce de Charleroi, 15 May 2006 (Case was referred to the European Court of Justice, but did not reach a judgment since the parties reached a settlement out of court),

[39] A. Duff, Portugal, Spain Said to Complain to EU on Soccer Finance Rules (BloombergBusiness, 4 February 2015), http://www.bloomberg.com/news/articles/2015-02-04/portugal-spain-said-to-complain-to-eu-on-soccer-finance-ban (last visited 28 June 2015).

[40] BBC News, Fifa corruption inquiries: Officials arrested in Zurich (bbc.com, 27 May 2015), http://www.bbc.com/news/world-europe-32895048 (last visited 28 June 2015).

[41] ESPN, Iranian Federation suspended by FIFA (espn.com, 23 November 2006), http://www.espnfc.com/story/393454/iranian-federation-suspended-by-fifa (last visited 28 June 2015).

[42] M. Zandi, Is FIFA's Decision in the Best Interest of Football (Association Internationale De La Presse Sportive),http://www.aipsmedia.com/index.php?cod=551&page=news&tp=n#.VZAhwRuqqko (last visited 28 June 2015).

[43] Reuters, Indonesia government takes responsibility for ban (uk.reuters.com, 31 May 2015), http://uk.reuters.com/article/2015/05/31/uk-soccer-fifa-indonesia-idUKKBN0OG03920150531 (last visited 28 June 2015).

[44] Pink Floyd, Brain Damage (Dark Side of the Moon, EMI, 1973).

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