Editor’s note: Thomas Terraz is a third year LL.B. candidate at the International and European Law programme at The Hague University of Applied Sciences with a specialisation in European Law. Currently he is pursuing an internship at the T.M.C. Asser Institute with a focus on International and European Sports Law.

1.     Introduction

The surge of e-sports has stimulated a lively discussion on the essential characteristics of sport and whether e-sports, in general, can be considered a sport. However, one should not overlook the fact that e-sports encompass a broad range of video games that fundamentally differ from one another. Thus, as one commentator recently underlined, “the position of video games and the e-sport competitions based on them should be analysed on a case-by-case basis.”[1] In this spirit, this blog aims to provide a concise analysis of one of these e-sports, League of Legends (LoL), and one of its main competitions, the League of Legends European Championship (LEC), to assess whether it could be considered a sport in the sense of EU law. The LEC offers a fascinating opportunity to examine this issue especially since the previous European League of Legends Championship Series (EU LCS) was rebranded and restructured this year into the LEC.

2.     What is League of Legends and the LEC?

At the time of writing, LoL released nearly a decade ago by Riot Games (a game developer based in the USA) and rapidly became one of the most played video games in the world due in part to its free to play business model. This means that anyone can download and play LoL on their computer without ever having to pay anything. In-game microtransactions exist but do not provide any competitive advantage. The game itself involves two teams of five players who each control a ‘champion’, which are characters in the game that each possess unique abilities. A team only wins when it has destroyed the enemy base (‘nexus’). The game is not only a popular video game, but it is a popular e-sport. The most recent world championships finals attracted 99.6 million unique viewers. While these numbers are greatly due to its popularity in China and South Korea, there is also a sizeable European viewership of LoL. For example, the LEC regular season matches have reached a record-breaking 355,000 concurrent viewers in its 2019 spring competition.

The LEC is LoL’s highest level of European competition and is owned and organised by Riot Games who establishes and enforces the rules which apply to the teams participating in the LEC. Consequently, Riot Games is truly at the apex of professional LoL in Europe by setting both the in-game parameters (the rules of the game) and the regulations that govern its competitive play. As explained earlier, Riot Games restructured and rebranded its previous European competition, EU LCS, into the LEC. While previously the EU LCS was characterised by a pyramid structure with a promotion and relegation system familiar to the European sports world, the LEC introduced a franchise model to follow its sibling competition in North America, the League Championship Series (LCS). The LEC itself is a limited liability company registered in the Republic of Ireland as League of Legends European Championship Limited.[2] The LEC buy-in fee for teams already in the EU LCS was reportedly set at 8 million euros and 10.5 million euros for those outside the EU LCS. Additionally, big brands such as KIA, Shell, Foot Locker and Red Bull sponsor the LEC and are featured during the broadcast. Besides being produced and diffused weekly by the official Riot Games English broadcast team in a professional studio in Berlin on Twitch (an online video game livestreaming service) and YouTube, the LEC partners with other official broadcasters who provide coverage of the matches in other languages (French, Spanish, Polish, German, Italian). Nevertheless, before examining the LEC’s position under EU law, a review of the broader arguments on the fundamental traits of sport will contextualise the Court of Justice of the European Union’s (CJEU) interpretation of the concept of sport.

3.     Is LoL played in the LEC a sport competition?

The academic discourse on the definition of sport has provided a plethora of elements and conditions for an aspiring sport to meet in order to be considered a ‘real’ sport. Needless to say, this blog will not be able to address all of them. However, the characteristics identified by Suits and elaborated by Jenny et al. and Abanazir are a good starting point for this brief review.[3] Suits explains that sports are in essence games that require skill, where the skill requires physicality, that the game have a wide following, and that this following have a certain level of stability. Abanazir delved into the concept of stability in the e-sports context by explaining institutionalisation’s central role in achieving permanence.

On the first requirement, there is very little room to argue that professional LoL does not require a great amount of skill. Suits explains that games of skill provide ‘unnecessary obstacles’ (in relation to daily life) “to realize capacities not otherwise realizable” that do not rely on pure chance.[4] Playing LoL is not in any way a necessary part of human life, yet many players practicing LoL play to refine and improve their mechanical skill (the physical element of the game, e.g. muscle memory and reflexes). Chance sometimes plays a role in LoL, but it is rarely a decisive factor in determining the outcome of a competitive match. Generally, Riot Games has taken steps over the years to limit the elements of pure luck in its game.

The role of physical motor skills in e-sports has been explained in detail by van Hilvoorde and Pot, and this blog will not dive into the arguments on whether actions taken in a video game can be considered taking place in the ‘real’ world.[5] Assuming that it does, the skill required in LoL is intrinsically connected to its physicality. LoL is played on a computer with a mouse and a keyboard. High level play requires precise movement of the arm, wrist and/or hand to most effectively control one’s character with the mouse. Additionally, the clicks and inputs registered by one’s fingers on the mouse and keyboard must be timed precisely and with enough practice these movements become muscle memory. The classic example of a game that does not require this sort of physicality is chess because the manner in which one moves a chess piece from a to b does not affect the result of the game. On the other hand, LoL demands precise and timed movements of the player’s arms, wrists, and/or fingers to be played optimally. One can be a LoL strategic genius but without a sufficient level of mechanical skill, it is impossible to become a professional LoL player.

Next, a large following is probably the easiest criteria for LoL and the LEC to fulfil. Between the large viewership that watch the LoL events online and the thousands of spectators that come to watch the championships live, there is very little doubt that LoL and the LEC have a wide following at the moment. However, this point leads into the next element which arguably may be the hardest criteria for it to satisfy in the long term: stability.

Video games and consequently, e-sports, generally reach a point where they have achieved their max popularity and eventually begin to lose players and viewers. Often times, this is the result of newly released video games pushing older and ‘outdated’ games out of the spotlight. LoL has remained at the forefront of e-sports for nearly a decade and there is little suggestion that this will change in the near future. Part of this is Riot Games’ continued support of LoL by regularly updating the game. Updates are released nearly every other week and can range from graphical improvements, balancing the game to ensure the viability of new strategies, the introduction of new champions (currently 143 champions) and tweaks that improve the way the game runs on the computer. Abanazir describes that changes such as these “present a double-edged sword” because while they keep the game fresh for players, they can result in drastic changes to the best strategies (meta) to win the game.[6] Thus, professional teams and players must continually adapt their play to conform to the meta. Nevertheless, updates have never fundamentally changed the goal and overall ‘rules’ of the game. Professional LoL is always two teams of five players, each controlling one champion, aiming to destroy the enemy nexus.

From an outsider’s point of view, it may seem that the constant flux of the meta would truly damage any of LoL’s claim to stability. However, in this context, it is imperative to highlight the institutionalisation of the LEC. Institutionalisation describes the appearance of “standardisation of rules, the formalisation of learning of the games, the development of expertise and finally the emergence of coaches, trainers, officials and governing bodies.”[7] The very fact that the meta often changes have pushed professional teams to hire analysts that review the team’s play and are constantly searching for new and creative ways to play LoL. Additionally, all professional teams have at least one coach who not only define the team’s strategy before each game, but also ensure that players observe strict practice schedules. During LEC matches, referees (Riot Games employees) are always present in order to ensure that the LEC rules are observed, which greatly lends to the idea of a ‘standardisation’ of the rules.[8] In fact, Riot Games directly state that the creation of the LEC Rulebook is to help “unify and standardize the rules used in competitive play.”[9] From this outline, there are many indications that the LEC and LoL have many of the characteristics of a sport and currently have achieved a certain amount of stability and institutionalisation. The true test will be whether these structures continue to last as they have been developed and implemented over the past eight years.

4.     A Sport under EU Law?

Recently, the Court of Justice of the European Union (CJEU) ruled on whether the English Bridge Union could benefit from a sports exemption under the VAT Directive and in doing so examined the concept of sport under that Directive.[10] Furthermore, in this case, Advocate General (AG) Szpunar provided an enlightening opinion to the Court examining the concept of sport in the context of the VAT exemption.[11] Both provide a good opportunity to infer how the Court would perhaps go about determining whether the LEC is a sport competition under EU law. This being said, the sport exception in the current VAT Directive would not apply to the LEC since Article 132 (1) (m) applies only to services provided by non-profit organisations. Nonetheless, should League of Legends European Championship Limited eventually restructure into a non-profit, it would not be far-fetched to imagine a situation in which it would seek to have VAT reimbursed from authorities under a sports exception in the future. After all, Riot Games has repeatedly stated that it does not make a profit on its e-sport activities.[12]

The AG’s opinion began by explaining that the concept of sport in the exemption should be “interpreted in a narrow manner, while bearing in mind the purpose and objective of the exemption.”[13] From this it is clear that the analysis of the concept of sport differs depending on the applicable provision, which could mean that the LEC could be considered a sport competition under one provision and a purely economic activity in another context. The AG goes on to identifying elements which preclude an activity from being considered a sport and states that “where a physical element is not necessary, sport is defined by competition and the fact that equipment is provided by not just one supplier -  which excludes activities without a broad basis in civil society, such as commercial products in the market place, designed by firms for pure consumption (for instance video games).”[14] If this interpretation of the concept of sport had been endorsed by the CJEU, it would have constituted a tremendous obstacle for the LEC. Indeed, if the ‘equipment’ also encompasses the game itself, it is impossible to argue that Riot Games does not hold a monopoly over the supply of LoL. Moreover, Riot Games has made and continues to support LoL in order to make money. In analysing this opinion, Abanazir explains the core issue well: “e-sport competitions based on video games created for purely consumption purposes and organised by persons aimed to profit from these activities may find themselves out of the scope as they are perceived to be devoid of social function.”[15] Indeed, it can seem difficult for the LEC and LoL to argue that it has a deeper ‘social function’ but perhaps this requirement might not be completely insurmountable. An argument could be made that the e-sports aspect of LoL is not only a commercial product made for pure consumption especially because LoL is a free to play game, and Riot Games does not seem to be making any profit in its e-sport related activities. Riot Games and the LEC have also taken steps to enhance the social function of LoL by investing in regional leagues to develop local talent.

In its ruling on the Bridge case, the CJEU sidelined the AG’s approach and decided to focus on a physicality requirement. The Court, in examining the specific VAT provision, found that sport must be “characterised by a not negligible physical element,” and the fact that an activity has elements of competition, professionality and organisation were not deemed sufficient to argue that the activity is a sport for the VAT exemption.[16] Physicality was the central criteria in the CJEU’s interpretation of the concept of sport, but in doing so, it did not give any further clarity as to the threshold of physicality required for an activity to benefit from the VAT sport exemption. It has already been contended above that LoL does have a clear physical element which is intrinsically connected to the game’s skill, yet the question remains whether the physicality would be considered more than negligible by the CJEU.

In summary, if LoL and the LEC were to be examined under the VAT Directive sport exemption, it would be confronted with several challenges. The approach endorsed in the AG’s opinion would have been the most problematic since LoL is mainly a commercial product designed to attract consumers and ultimately profit a private company. However, the CJEU chose to focus its interpretation of the concept of sport on a physicality criterion. This decision may give the LEC a wide enough window to argue that the fine motor skills involved in LoL are enough to fulfil this condition.

5.     Conclusion

In its current form, the LEC would not be able to benefit from the sport exemption in the VAT Directive, but this is just one provision of EU law, and there could be other opportunities where it could attempt to claim to be a sport. In the meantime, this gives an opportunity to Riot Games to continue to develop and emphasise the social function of its e-sports competitions, which might entail building a not-for-profit entity to run the competition and to strengthen the redistribution of economic gains to the grassroots. In any case, LoL and the LEC share many characteristics with established sports, but it remains to be seen if this will be enough to boost its recognition as a ‘real’ sport in law and society.

[1] Cem Abanazir, ‘E-sport and the EU: the view from the English Bridge Union’ (2019) International Sports Law Journal 102.

[2] ‘LEC Rules’ (LoLEsports).

[3] William Morgan, Ethics in Sport (3rd edn, Human Kinetics 2018) ch 1: Elements of Sport by Bernard Suits; Seth Jenny et al., ‘Virtual(ly) Athletes: Where eSports fit within the definition of “Sport”’(2016) Quest 1; Cem Abanazir, ‘Institutionalisation in E-Sports’ (2019) Sport, Ethics and Philosophy 117.

[4] Morgan (n 3) ch 1.

[5] Ivo van Hilvoorde and Niek Pot, ‘Embodiment and fundamental motor skills in eSports’ (2016) Sports, Ethics and Philosophy 14.

[6] Abanazir (n 3).

[7] Jenny et al. (n 3); Abanazir (n 3).

[8] See LEC Rulebook Art. 8.15.

[9] LEC Rules (n 2).

[10] Case C-90/16 The English Bridge Union Limited v Commissioners for Her Majesty’s Revenue & Customs ECLI:EU:C:2017:814.

[11] Case C-90/16 The English Bridge Union Limited v Commissioners for Her Majesty’s Revenue & Customs ECLI:EU:C:2017:814, Opinion of AG Szpunar.

[12] Steven Asarch, ‘“League of Legends” cuts esports budget, can Riot Games bounce back?’ (Newsweek, 28 August 2018); Derrick Asiedu head of Global Events at Riot Games confirmed this in a Reddit post: “We’re a long way from breaking even (revenue minus cost equalling 0)”.

[13] English Bridge Union Opinion (n 11) para 21.

[14] English Bridge Union Opinion (n 11) para 38.

[15] Abanazir (n 1).

[16] English Bridge Union (n 10) para 19, 25.

Editor’s note: Rhys Lenarduzzi is a final semester Bachelor of Law (LL.B) and Bachelor of Philosophy (B.Phil.) student, 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 recently as September 2020, questions were raised in the European Parliament on the non-application of training compensation to women’s football. Whilst this blog will predominantly consider potential inconsistencies in reasoning for and against training compensation in men’s and women’s football, the questions before the Commission were largely on the theme of disrespect and discrimination. Somewhat unfortunately, the questions raised were side-stepped, with Ms Gabriel (Commissioner for Innovation, Research, Culture, Education and Youth) simply stating that: “The TFEU does not give the Commission the competence to interfere in the internal organisation of an independent international organisation such as FIFA.” This might be true in theory, though one might feel some degree of uneasiness if privy to the Commission’s role in the 2001 FIFA regulatory overhaul.

It is currently explicit in the regulations and the commentary, that in women’s football, signing clubs are not required to compensate training clubs for developing players, through the training compensation mechanism that exists in men’s football. Though it is a contentious comment and as will be expanded below, this may not have always been the case.

At Article 20 of the FIFA Regulations on the Status and Transfer of Players (RSTP), one will find that the principles of training compensation shall not apply to women’s football. Further, in FIFA’s recently released Women’s Football Administrator Handbook (the handbook), it states that disputes relating to training compensation are limited for the moment to male players only.[1]

Regulations on solidarity contributions on the other hand do apply to women’s football, but given transfer fees are not so common, the use of the mechanism is not either. As an indication of how uncommon the activation of the solidarity contribution mechanism in women’s football might be, FIFA reported in the handbook just four claims with the Players’ Status Department in 2016 (three claims involving the same player), and zero since.[2] That is in comparison to hundreds of claims made per season in men’s football, where signing and owing clubs had not fulfilled their obligation to pay the solidarity contribution.

Given the aforementioned, this blog will largely focus on training compensation and how it came to be the case that this mechanism, often presented as critical in the context of men’s football, does not apply in women’s football. To do so, I will first discuss the reasoning advanced in an unpublished CAS award, which one may reasonably suspect played a fundamental role in shaping the current exemption. I will then turn to FIFA’s timely response to the award and the adoption of its Circular No. 1603. Finally, I will point out the disconnect in FIFA’s decision to adopt two radically different approaches to the issue of training compensation in male and female professional football.

1. CAS 2016/A/4598 WFC Spartak Subotica v FC Barcelona

This little-known, David vs. Goliath, Court of Arbitration for Sport (CAS) award on appeal of a FIFA Dispute Resolution Chamber (DRC) decision, might be what prompted FIFA to make the relevant changes excluding women’s football from the scope of Article 20 RSTP in 2017. Though not a public case, one might reasonably suspect the decision was the nudge that led FIFA to change the regulations and explicitly state that training compensation does not apply to women’s football, given the timing and the fact that this was ultimately a decision that went counter to the internal decision at the DRC.

A significant consideration for the CAS and one which needed to be made clear by the panel, was the distinction between whether training compensation should apply versus does apply. The CAS deemed its task was not to consider the former, regarding the latter it found the Serbian women’s club reasonably interpreted the then applicable RSTP as covering women’s football, given in other places within the same regulations there is a concerted effort to make no discriminatory distinction between the genders, and, the regulations at this stage did not explicitly state that the mechanism did not apply to women’s football.

Consequently, the award provided that FC Barcelona was to pay 2.5 years at the category 1 rate of EUR 90,000, amounting to EUR 225,000 (plus 5% interest and costs) to WFC Spartak Subotica despite numerous attempts from FC Barcelona’s legal team to aver training compensation does not apply to women’s football.

Some of the ill-received arguments were attempts to raise the question of whether training compensation should exist, largely pointing at the commercial differences and size of the game in women’s and men’s football. The panel would not deal with these questions and instead insisted on considering whether it does exist, per the regulations as they were. FC Barcelona attempted a comparative argument with Futsal where the training compensation mechanism does not apply. This was also dismissed and deemed an improper comparison. Not due to the comparison per se however, but rather the panel concluded the point may well go against the respondent, given:

“the fact that FIFA included an express exception of futsal but no equivalent exception of women’s football is at least some indication that it did not intend to exclude women's football.”[3]

The applicant relied heavily on that which was stated at the “General Provisions’ section of the RSTP (2012), namely “Terms referring to natural persons are applicable to both genders.” The tribunal saw the provision as favourable for the applicant and that the burden was with FC Barcelona to show that the RSTP ought to be interpreted another way, by either providing some additional context, history, intention or similar. The respondent was unable to do so and instead relied heavily on the previous DRC decision in its submissions and did not submit much by way of evidence at all. The panel paid particular attention to the lack of evidence given by the respondent and that this case may have looked differently had FIFA accepted an invitation to join, as FIFA may have been able to shed light on how the regulations ought to be interpreted, had they been able to provide the context and intention that FC Barcelona could not.[4]

Ultimately when it came to FC Barcelona’s submissions and the prior decision of the DRC, the CAS was uncomfortable with “a distinct undercurrent of a policy decision that the RSTP should not apply to women's football”[5] when a rigorous interpretation of the RSTP (2012) as it stood then was what was required. Furthermore, the panel landed at “an overall conclusion that the DRC reasons are flawed at various points and did not sufficiently grapple with the arguments for the Appellant.”[6]

2. 2017 amendments and FIFA Circular No. 1603

Though FIFA declined an invite to join the above CAS case,[7] it is in a sense as though the submissions made by FC Barcelona’s legal team were simultaneously on behalf of FIFA, given a heavy reliance on the prior DRC decision and what followed. In what may have appeared a clarificatory exercise at the time, it appears the 2017 amendments announced via FIFA Circular No. 1603 were at least in part a response to the above CAS case.

Within that circular, FIFA announced that the regulations “now explicitly specifies that the principles of training compensation do not apply to women's football.” It made a point that the express amendments pertaining to training compensation now reflect existing DRC jurisprudence and “clarify the always intended meaning”. Whilst that clarity is direct, it may also contain an undertone of frustration in relation to the above CAS case. FIFA were undoubtedly addressing what it perceived as a problem, though it is the following from Circular No. 1603 that might raise more questions than offer solutions: “It should be noted that the existing training compensation formula would act as a deterrent to the movement of female players and consequently stall the development of the women's game.” Sound familiar? This will be expanded upon below.

Finally on training compensation and women’s football and before addressing other issues therein, Circular No. 1603 states that “FIFA administration is working on a specific concept to be applied to the women's game in consultation with the stakeholders, bearing in mind the overall objective to promote and enhance the development of women's (professional) football.” Whilst this is for another blog and for another day, one can reasonably wonder what has been done. Or might it be the case that refraining from more regulation has resulted in more growth in the women’s game?

Noteworthy in hindsight, given the CAS case is and was not public, is that FIFA did not have the pressure it may have otherwise had to explain its regulatory amendments regarding training compensation in women’s football, that were contrary to the CAS decision. Whilst the CAS left the door open for sound arguments to be made against training compensation in women’s football, they found serious flaws in the arguments made by FC Barcelona, as well the reasons given by the DRC in the initial decision. Most notable on this front might be an out-and-out rejection of a comparison with futsal, as well rejecting a general distinction between the men’s and women’s game as being useful.  Despite this, it appears FIFA proceeded to explicitly enshrine in the RSTP that training compensation does not apply, without dealing with the fundamental questions raised but not necessarily answered in the CAS case. It is just interesting to note, that the CAS award that was challenging FIFA’s rationale was coincidentally kept confidential. This might speak for greater (and systematic) transparency with regard to the CAS’ appeal awards.

3. The Incoherence of a Double Standard Between Men’s and Women’s Football

It is certainly true, in a very general sense, that women’s and men’s football are in a different place commercially inter alia. However, as mentioned in my introductory blog, men’s football has since the late 1800s in the form of the ‘retain and transfer’ system, and now with the current mechanisms, had systems that were claimed to be imperative to incentivise training by compensating clubs for developing players (not to mention the growth and survival of the game). So why is the same rationale not applied to women’s football? Might it be reasonable to conclude that women’s football in its current stage of economic development is at an equivalent stage to where men’s football was at some point between then and now, where a system for compensating training clubs and incentivising clubs to develop youth did exist?

In any case, the rationale appears flawed, as comparing men and women’s football in the general sense is not a useful exercise. Just a brief analysis of the gap between the richest and poorest clubs in men’s football exposes it so. Other than the fact both entities are football clubs, what is the same about Real Madrid of Spain and Rèal Comboni of the Central African Republic? What are we to make of a comparison of Olympique Lyonnais Féminin (the most successful women’s football team in history and a commercially successful club and story), and Liberty Professionals F.C. men’s team of the Ghana Premier League (who do not always fill their 2,000 seat stadium)?

At paragraph II. 19 of the prior DRC decision to the above CAS case “the DRC deemed necessary to stress that the award of training compensation for the transfer of female players could possibly even hinder the further development of women’s football and render the previous efforts to have been made in vain”. A near identical claim to that made in the aforementioned FIFA Circular. This may be the case, but isn’t this just an extension of the “hindrance effect” I referred to in my previous blog regarding African players? Though not the exact same flavour of hindrance, as in the case of the African player I was largely referring to the mechanism hindering an individual from being able to transfer freely. In this instance the hindrance might be more macro in that, a growing women’s club may be set back if forced to pay compensation to the training clubs of the players they sign and in turn the women’s game suffers. In any case, the notion that training compensation might act as a deterrent or hindrance being exclusive to women’s football is absurd in theory, and even more so in my experience in practice.

The commercial differences are widely stated and perhaps overstated as reasons why signing clubs ought not or could not pay training compensation in women’s football. Whilst such a claim may at least contain a grain of truth, the commonly used argument overlooks the fact that the cost of developing and training players at grassroots level, that which is the subject of compensation, is often similar within nations and certainly across the genders. In the above CAS case, the only witness and the president of both Spartak Subotica men’s and women’s clubs, Mr Zoran Arcic, stated that the costs were almost identical for men and women and that they were paid approximately the same amounts of monthly salaries or scholarships.[8]

It has been argued that Futsal is comparable in its development with women’s football commercially, and that is why the principles of training compensation apply to neither. At paragraph II.16 of the DRC case prior to the appeal at CAS, it was averred that "the grade of professionalism reached in futsal also lies far behind the one of eleven-a-side men’s football insofar, according to the DRC, the situation may be considered as comparable to the one of the women’s game.” However it has been reported that some futsal players are signing contracts in excess of EUR1 million. How then could one conclude that training compensation regulations should apply to a small men’s club in South America or Africa, or any confederation for that matter, with entire budgets much smaller than individual players’ salaries in futsal or women’s football, when the evidence suggests the commerciality of futsal and the women’s game in size and opportunity trumps many men’s football entities.

In 2019, FIFA initiated a Club Solidarity Fund for the Women’s World Cup, which compensates or rewards clubs that trained and developed players from the age of 12 who participated in the World Cup.[9]  What is one to draw from this positive though peculiar commitment? Are only training clubs that had the fortune of one of their players going on to a world cup, worthy of being compensated? This appears inconsistent with far reaching societal effects training compensation was said to have and why it was deemed justified in the relevant cases, commentary and media. Might it be the clubs that are not able to produce players of a high enough quality to go to a World Cups that need the funding? Further, this fund will not trigger the same alleged incentives to train players that the training compensation mechanism apparently has.

An array of arguments and justifications made for a system that hinders free movement to a considerable degree, though incentivises training, was embraced in the Bernard[10] ruling of the Court of Justice of the EU. So how come women’s football should fall outside of this widely acknowledge necessity to encourage training according to FIFA? Nowhere in Bernard can one find a specific reference to men only when the importance of encouraging training is explored at length. Elsewhere in EU policy documents one finds instead the explicit recognition that “investment in and promotion of training of young talented sportsmen and sportswomen in proper conditions is crucial for a sustainable development of sport at all levels”.[11] Until the CAS award discussed above, FIFA had appeared to argue that such investment only eventuates if a training compensation system is introduced. Hence, this strange double standard between men and women’s football might deserve a much more elaborate explanation than the one put forward by FIFA.[12]

4. Conclusions

If it is the case that training women is the same or similar in cost as training men, and it is that actual cost that the training compensation mechanism is geared towards incentivising clubs to spend on youth and then be compensated for, then one might have difficulty in concluding the principles of training compensation should apply to one and not the other. If it is the case that there is vulnerability of women’s clubs and in turn of the women’s game if they had to pay training compensation, and there exists a myriad of men’s clubs in the same economic predicament, might that say something about the appropriateness of the mechanism more broadly?  Ought a player’s free movement be prioritised simultaneously with the financial viability of mid to low wealth clubs, which raises questions about the suitability of the mechanism across the genders, yet is significantly amplified by its apparent inappropriateness for women's football. 

The identification of the various flaws in the justifications for the regulations is to say nothing of whether the systems ought to exist. Rather, it is to highlight that two sets of contradictory rules are operating within the FIFA regulations and the arguments for the current state of affairs are philosophically and economically flawed.

It appears that the women’s football community has bought into this notion around transfer fees, etc. What is culturally happening then is that clubs are more likely to let a woman follow her dreams and not stand in the way in the form of demanding transfer fees (and cannot in the form of training compensation), as the concept of fees is a relatively foreign one in comparison to the men’s game. This can at first glance appear unfortunate that women’s clubs are not being compensated, but it could just as plausibly be uncovering that the important principles of free movement ought to trump a flawed redistributive system, and that in fact a system of redistribution in football could (and maybe should) be entirely divorced from the transfer system and the movement of players.

[1] FIFA Women’s Football Administrator Handbook 2020, 125.

[2] Ibid, 118.

[3] CAS 2016/A/4598 WFC Spartak Subotica v FC Barcelona at 54.

[4] Ibid at 49.

[5] Ibid at 55.

[6] Ibid at 55.

[7] Ibid at 104.

[8] CAS 2016/A/4598 WFC Spartak Subotica v FC Barcelona at 73.

[9] Women’s Football Administrator Handbook 2020, 151.

[10] Case C-325/08 Olympique Lyonnais SASP v Olivier Bernard and Newcastle UFC, ECLI: EU: C:2010:143

[11] Commission’s White Paper on Sport of 11 July 2007,6.

[12] Consider also at Annex IV to the Conclusions of the French Presidency from the European Council meeting in Nice, where it was said the “training policies for young sportsmen and women are the life blood of sport, national teams and top-level involvement in sport and must be encouraged”