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

Investment in Football as a Means to a Particular End – Part 2: The Multiple Layers of Multi-Club Ownership Regulation in Football - By Rhys Lenarduzzi

Editor's note: Rhys was an intern at the T.M.C. Asser Institute. He now advises on investments and Notre acquisitions in sport (mainly football) via Lovelle Street Advisory. Following a career as a professional athlete, Rhys has spent much of his professional life as an international sports agent, predominantly operating in football. Rhys has a Bachelor of Laws (LL.B) and a Bachelor of Philosophy (B.Phil.) from the University of Dame, Sydney, Australia. He is currently completing an LL.M at the University of Zurich in International Business Law / International Sports Law.


Having looked at the different types of investors in football in part one of this two-part blog series, “A non-exhaustive Typology”, it is fitting to now consider the regulations that apply to investors who seek to build a portfolio of football clubs.

One way to measure the momentum of a particular practice and how serious it ought to be taken, might be when that practice earns its own initialism. Multi-club ownership or MCO as it is increasingly known today, is the name given to those entities that have an ownership stake in multiple clubs. Within the little research and writing that has been undertaken on the topic, some authors submit that investors with minority stakes in multiple clubs ought not to be captured by the MCO definition.  This position appears problematic given some of the regulations draw the line at influence rather than stake.

There are now approximately 50 MCO’s across the football world that own approximately 150 clubs.[1] Given the way MCO is trending, one might consider it important that the regulations keep up with the developing MCO practice, so as to ensure the integrity of football competitions, and to regulate any other potentially questionable benefit an MCO might derive that would be contrary to football’s best interests.

In this blog, I focus on the variety of ways (and levels at which) this practice is being regulated.  I will move through the football pyramid from member associations (MA’s) to FIFA, laying the foundations to support a proposition that FIFA and only FIFA is positioned to regulate MCO. More...


Multi-Club Ownership in European Football – Part II: The Concept of Decisive Influence in the Red Bull Case – By Tomáš Grell

 

Introduction 

The first part of this two-part blog on multi-club ownership in European football outlined the circumstances leading to the adoption of the initial rule(s) aimed at ensuring the integrity of the UEFA club competitions (Original Rule) and retraced the early existence of such rule(s), focusing primarily on the complaints brought before the Court of Arbitration for Sport and the European Commission by the English company ENIC plc. This second part will, in turn, introduce the relevant rule as it is currently enshrined in Article 5 of the UCL Regulations 2015-18 Cycle, 2017/18 Season (Current Rule). It will then explore how the UEFA Club Financial Control Body (CFCB) interpreted and applied the Current Rule in the Red Bull case, before drawing some concluding remarks.  More...

Multi-Club Ownership in European Football – Part I: General Introduction and the ENIC Saga – By Tomáš Grell

Editor’s note: Tomáš Grell holds an LL.M. in Public International Law from Leiden University. He contributes to the work of the ASSER International Sports Law Centre as a research intern.

 

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. More...


Asser International Sports Law Blog | Quantifying the Court of Arbitration for Sport - By Antoine Duval & Giandonato Marino

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

Quantifying the Court of Arbitration for Sport - By Antoine Duval & Giandonato Marino

 



Graph 1: Number of Cases submitted to CAS (CAS Satistics)


The Court of Arbitration for Sport (CAS) is a fairly recent construct. It was created in 1984 under the patronage of IOC’s former president Juan Antonio Samarranch. However, as is evident from Graph 1, it gained prominence only at the turn of the century and reached the symbolic 100 cases/year bar only in 2003. This recent boom of the CAS docket is mainly due to the adoption of the WADA code and the introduction thereafter of binding arbitration clauses in the statutes and regulations of Sports Governing Bodies. Nowadays, CAS is dealing with a caseload of more than 350 cases/year, which is still growing constantly. From 2008 onwards CAS started even to experience pending cases, as it was not able anymore to process all the cases submitted in one calendar year (Graph 2). The steep fall of “other decisions” (Graph 3), a proxy for decisions (mostly on procedural matters) not involving an award, might indicate that the litigants and their lawyers have become more proficient in CAS procedure. Finally, the number of cases withdrawn (Graph 4) has been varying a lot, without it being possible to pin down any definitive cause explaining those variations. It is, however, notable that more than 2/3 of the cases give way to an award.

 


Graph 2: Percentage of the cases resulting in an Award/Opinion vs. Percentage of pending cases (Data CAS Statistics)


 

 

Graph 3: Percentage of Procedures terminated by a CAS decision other than an award (Data CAS statistics)



Graph 4: Percentage of Cases withdrawn before a decision by the CAS (Data CAS statistics)

 

The breakdown of the way cases were submitted to CAS (Graph 5) highlights very well the paramount role played by the 1994 reform process triggered by the Gundel ruling of the Swiss Federal Tribunal in 1993. Indeed, it is this reform process which enabled the final recognition of CAS as an independent tribunal by the Swiss Federal Tribunal, a move necessary to ensure the legitimacy of its awards. But, it is also the process through which the appeal procedure of CAS got solidified and became highly valuable in the eyes of Sports Governing Bodies. In light of the Bosman case and the perceived need for a global anti-doping Court, CAS became both a recourse to protect the sporting autonomy and a mean to ensure a harmonized anti-doping playing field. Thus it is not surprising that with the entry into force of the first World Anti-Doping Code in 2004 a huge jump in the number of CAS cases under the appeal procedure can be observed (Graph 5), passing from 46 in 2003 to 252 in 2004 and growing to 301 in 2012. In the meantime, the ordinary procedure cases have been stable with 61 cases in 2003 and 62 in 2012. CAS’s success is largely the success of the appeal procedure, but this appeal procedure seems potentially threatened after the recent Pechstein decision of the Landesgericht München. Furthermore, since 1996 ad hoc CAS proceedings have been introduced. At first only for Olympic games (every two-year) and more recently for other international competitions. However, the caseload of the ad-hoc tribunals remains modest, the peak was reached at the Sydney Olympic in 2000 with 15 cases, since then Ad-hoc tribunals have been in the shadow of the prominent place taken by the Appeal Procedure.




Graph 5: Types of procedure (Ordinary Procedure, Appeal Procedure, Consultation Procedure and Ad-Hoc Procedure) under which cases were submitted to CAS since 1995. (Data CAS statistics)

 

Finally, our last Graph 6 shows that the boom of the number of CAS awards has quite logically triggered a steep rise in the number of appeals against those awards submitted to the Swiss Federal Tribunal. Indeed, starting from one or two decisions per year in the early 2000s, the Swiss Federal Tribunal is now adopting more than 15 rulings per year on appeal of CAS awards. However, very few of these decisions have overruled CAS awards, moreover once an award is overruled it is usually sent back to CAS to decide de novo on the case, thus giving it the opportunity to correct any procedural mistake leading to the annulment of the first award. This appeal procedure is therefore rather a mock procedure; an appellant has very little chances to succeed. In fact, it is only recently that in a case concerning a CAS award (the Matuzalem case), the Swiss Federal Tribunal considered, for the first time, an arbitral award as contradicting Swiss material public policy. The route to the Swiss Federal Tribunal might be the most obvious to any athlete wishing to contest a CAS award, but it is definitely a very difficult (and costly) one, leaving very few reasons to hope for a final twist.

 

 

Graph 6: Number of Decisions of the Swiss Federal Court in Appeal against CAS awards. (Data ASSER)

 

This report on the Court of Arbitration for Sport was aimed at fleshing out the intuition of sports lawyers on the importance taken by CAS in contemporary sports law practice with some “hard” data illustrating both the temporal and quantitative shifts of the CAS relevance. The rise of the CAS needed to be statistically deconstructed and analysed in order to fully grasp the role it plays in the governance of sports. Furthermore, its interaction with state courts, and in particular with the Swiss Federal Tribunal, deserves close scrutiny. In many instances the Swiss Federal Tribunal is the sole forum of review for CAS awards. This is particularly true for athletes, which have usually been forced, in one way or another, to submit to arbitration. Thus, the debates around the legitimacy and role of CAS in sports governance can only gain from an enhanced knowledge of the empirical reality underlying the Court of Arbitration for sport.

 

Indicative Bibliography on CAS:

A. Rigozzi, Arbitrage International en matière de sport

A. Rigozzi, Challenging Awards of the Court of Arbitration for Sport

G. Kaufmann-Kohler Arbitration at the Olympics – Issues of Fast-Track Dispute Resolution and Sports Law

M. Maisonneuve, Arbitrage des litiges sportifs

I.S. Blackshaw, J. Soek, R. Siekmann  (Eds.), The Court of Arbitration for Sport 1984–2004

R. H. McLaren, Twenty-Five Years of the Court of Arbitration for Sport: A Look in the Rear-View Mirror

D. Yi, Turning Medals into Metal: Evaluating the Court of Arbitration for Sport as an International Tribunal

The CAS Database of awards

The CAS Bulletin

The Swiss Federal tribunal database (French and German)




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