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

Call for contributions - Sporting Succession in Selected Jurisdictions - Edited by Jacob Kornbeck and Laura Donnellan - Deadline 1 October 2025

  

Expressions of interest are invited from colleagues who would like to contribute to an edited book on Sporting Succession in Selected Jurisdictions. Interested colleagues are invited to send their abstracts jointly to laura.donnellan@ul.ie and klausjacob.kornbeck@gmail.com. If you are unsure about how your research would fit in, please feel free to reach out to us via email before writing your abstract. Abstracts received will be included into a book proposal to be submitted to a major English-speaking publisher. Colleagues will be notified by us once we have received the reaction of the publisher, at which point we shall decide about further steps to be taken in the process. 

 

The book will be edited by Jacob Kornbeck, BSc, MA, LLM, PhD, DrPhil, Programme Manager in the European Commission (but acting strictly in a private capacity) and external lecturer at the University of Lille, inter alia, and Laura Donnellan, LLB, LLM, PhD, Associate Professor in the School of Law, University of Limerick.

 

The following incorporates the most salient ideas from a presentation made by Jacob Kornbeck at the Sport&EU Conference in Angers (June 2023). 

 

The concept of sporting succession permits making claims against sporting entities which can be considered as sporting successors to previously existing sporting entities, even where the previous entities have been wound up and have been dissolved under normal bankruptcy and succession rules. No fault is required for sporting succession to be invoked and considered, and the concept may even apply in certain cases where the previous entity has not even been dissolved legally (CAS 2023/A/9809 Karpaty FC v. FIFA, Cristóbal Márquez Crespo & FC Karpaty Halych. 18 July 2024). While the implementation of the relevant FIFA rules by national FAs has been documented comprehensively in a recent edited book (Cambreleng Contreras, Samarath & Vandellós Alamilla (eds), Sporting Succession in Football. Salerno, SLPC, 2022), no known book or article addresses the overlap, interplay and potential conflict of norms between the lex sportiva of sporting succession and the public law or successions, etc. 

 

Provisions on sporting succession were first inserted into the FIFA Disciplinary Code 2019 with the effect that, whenever a sporting entity declares bankruptcy or is otherwise wound up, the notion of sporting succession applies to its unpaid financial liabilities and may be imputed to a so-called sporting successor, even if that successor is an entity legally distinct, according to the usual rules under public law, from the previous entity. Article 14 of the FIFA Disciplinary Code 2023 governs ‘failure to respect decisions,’ understood as failure to ‘pay another person (such as a player, a coach or a club) or FIFA a sum of money in full or part, even though instructed to do so by a body, a committee, a subsidiary or an instance of FIFA or a CAS decision (financial decision), or anyone who fails to comply with another final decision (non-financial decision) passed by a body, a committee, a subsidiary or an instance of FIFA, or by CAS.’ Article 21(4) extends the scope of the provision to the ‘sporting successor of a non-compliant party’ who ‘shall also be considered a non-compliant party and thus subject to the obligations under this provision. Criteria to assess whether an entity is to be considered as the sporting successor of another entity are, among others, its headquarters, name, legal form, team colours, players, shareholders or stakeholders or ownership and the category of competition concerned.’ Further provision is made in Article 21(7). In practice, this means that a club which carries on the legacy on a previous club, drawing on its cultural capital, fan base, etc., may be liable to paid unpaid debts of that previous club. These arrangements seem unusual prima facie.

 

Organs of FIFA have power to enforce these rules and to hear appeals against such decisions, while their decisions may be appealed to the Court of Arbitration for Sport (CAS) and/or to the Swiss judiciary (see Victor Piţurcă v Romanian Football Federation & U Craiova 1948 SA (CAS 2021/A/8331) (2023) as well as well as the rulings of the Federal Tribunal in the cases Youness Bengelloun (2022) and Júlio César da Silva et Souza (2022) based on Article 190 LDIP (Federal Act on Private International Law). 

 

While the concept of sporting succession offers a striking example of a provision for specificity enshrined in a sporting regulation and applied within the sports community, its pertinence under public law remains largely unaccounted for. With the (apparent) exception of one Swiss PhD thesis (Derungs, 2022), the issues which it raises seem so far to have failed to trigger the scholarship which they might deserve, especially in a comparative legal research perspective. The aim of the envisaged edited book is to explore the issue in a comparative perspective, not only across jurisdictions but also across different branches of the law. We hope in particular to receive abstracts on the following:


  • Examples from the most representative European (and possibly extra-European) countries of overlap, interplay and potential conflict of norms between the lex sportiva of sporting succession and the public law or successions, etc. Ideally, the book should include chapters from and about the biggest European countries which are most relevant to the football industry while, at the same time, it would seem crucial that the most important legal traditions (French and German civil law, common law, Nordic law) should be represented. 
  • Perspectives of players and other stakeholders.
  • Examples from other sports than football, if appropriate.
  • Examples of overlap, interplay and potential conflict of norms between the lex sportiva of sporting succession and other branches of lex sportiva, if applicable.
  • Examples of overlap, interplay and potential conflict of norms between the lex sportiva of sporting succession, on the one hand, and new developments in sports such as AI and esports, on the other.
  • If we have overlooked a meaningful nuance, please feel free to flag this in your submission and make corresponding proposals to us. 

Please send us your abstracts jointly to laura.donnellan@ul.ie and klausjacob.kornbeck@gmail.com no later than 1 October 2025. 

Reflecting on Athletes' Rights on the Road to the Olympic Games: The Unfortunate Story of Nayoka Clunis - By Saverio Paolo Spera and Jacques Blondin

Editor's note: Saverio Paolo Spera is an Italian qualified attorney-at-law. He holds an LL.M. in international business law from King’s College London. He is the co-founder of SP.IN Law, a Zurich based international sports law firm. Jacques Blondin is an Italian qualified attorney, who held different roles at FIFA, including Head of FIFA TMS and Head of FIFA Regulatory Enforcement. He is the co-founder of SP.IN Law. The Authors wish to disclaim that they have represented Ms. Nayoka Clunis before the Court of Arbitration for Sport in Lausanne in the context of the proceedings which led to the Award of 31 July 2024.

 

  

Every four years since more than a century,[1] a spectacular display of sportsmanship takes place over the course of a few weeks during the summer: the Olympic Games.[2]

         For thousands of athletes around the globe, the Olympic Games are “the pinnacle of success and the ultimate goal of athletic competition”.[3] In their quest to compete in the most important stage of their sport, they endure demanding and time-consuming efforts (often including considerable financial sacrifices). These endeavours occasionally lead to everlasting glory (the exploits of athletes of the calibre of Carl Lewis, or more recently, Usain Bolt[4] still resonate among sports’ observers), more often to a shorter gratification. Whether their gestures end up going down the sport’s history books or last the span of a few competitions, athletes are always the key actors of a magnificent event that continues to feed the imagination of generations of sports fans. 

And yet, situations may occur when athletes find themselves at the mercy of their respective federations in the selection process for the Olympic Games and, should the federations fail them (for whatever reason), face an insurmountable jurisdictional obstacle to have their voice heard by the only arbitral tribunal appointed to safeguard their rights in a swift and specialised manner: the Court of Arbitration for Sport (the “CAS”).[5]

This is the story of Nayoka Clunis, a Jamaican world class hammer throw athlete who had qualified for the Olympic Games of Paris 2024 and yet, due to no fault of her own, could not participate in the pinnacle of competitions in her sport. Though eligible in light of her world ranking, she was failed by her own federation[6] [AD1] [SPS2] and ultimately found herself in the unfortunate – but legally unescapable – vacuum whereby neither the CAS Ad Hoc Division in Paris nor the ‘regular’ CAS division in Lausanne had jurisdiction to entertain her claim.  

The aim of this paper is not to discuss whether Ms. Clunis would have had a chance to successfully prove her claims and compete in Paris had her case been heard on the merits, nor to debate about the appropriateness of a national federation’s selection process (also because Ms. Clunis never challenged it, having been eligible ‘from day one’).[7] Retracing the story of a sportswoman’s dramatic misfortune, this paper aims at providing an opportunity to reflect on how effective the safeguard of athletes’ rights in the context of the Olympic Games actually is. More...

Call for Papers - Long-term contracts in sport: The private foundations of sports law and governance - University of Inland Norway - Deadline 15 June

The University of Inland Norway and the Asser International Sports Law Centre invite the submission of abstracts for a workshop in Lillehammer on 4 and 5 December exploring the role of long-term contracts in sport and their characteristics through a variety of theoretical and methodological lenses.

Contracts play a crucial role in the world of sport, particularly long-term contracts. Contractual agreements form the foundation of transnational sports governance, SGBs are all formally the product of a specific time of contract (be it in the form of an association or corporation) often justifying the autonomy of sport and its private governance at a (more or less far) distance from the state.

Moreover, contracts establish long-term commitments between the parties involved, raising a variety of questions regarding the asymmetry in their positions, the scope of party autonomy, contractual mechanisms for addressing uncertainty, and their interaction with domestic and international mandatory regulations, among others. In short, it is impossible to fully understand the operation and limitations of transnational sports law and governance without investigating the many ways in which it is embedded in long-term contracts ruled by a variety of contract laws.

This workshop proposes to explore the role of long-term contracts in sport and their characteristics through a variety of theoretical and methodological lenses.

We welcome proposals touching on the following issues/case studies:

  • The concept of time in sport and the definition of ‘long-term’ in sport-related contracts;
  • The function of long-term contracts in transnational sports governance;
  • The function of long-term contracts in the operation of private dispute resolution mechanisms (CAS, BAT, FIFA DRC);
  • The transactional nature of long-term contracts in sport;
  • The relational nature of long-term contracts in sport;
  • The conflict between private autonomy and long-term contracts in sport;
  • The intersection between private and public in the operation of long-term contracts in sport;
  • Specific contractual arrangements, including:
    • Contracts of association and SGBs
    • Long-term (labour) contracts with athletes and coaches;
    • Contracts related to the organization of mega-sporting events, including host city contracts;
    • TV and media long-term contracts;
    • Sponsorship agreements;
    • and more.

Abstracts must be sent to Yuliya Chernykh (yuliya.chernykh@inn.no) by 15 June. 

New Training - Summer Programme on International sport and human rights - Online - 21-28 May

Since 2022, the T.M.C. Asser Instituut, in collaboration with the Centre for Sport and Human Rights, is organising the first yearly summer course on the intersection of sport and human rights. This 4th edition brings together scholars specialised in the intersection between sport and human rights with professionals working in international sport to ensure respect for human rights. We will explore contemporary human rights challenges in sports, such as the protections of human rights at mega-sporting events, access to remedy in human rights cases within the world of sport, the intersection between human rights and gender rights in international sporting competitions, and many more. 


The programme is designed to provide both deep background knowledge and actionnable insights, which will be relevant to a range of participants committed to defending human rights in international sport, including students, junior researchers, representatives of CSOs, sporting organisations, and athletes. It is structured around half days taking place online meant to accommodate as many participants as possible throughout the world. 


Check out the latest draft programme below and register HERE


Call for Papers - 20 Years of the World Anti-Doping Code in Action - ISLJ Conference 2025 - 6 & 7 November 2025


 


Call for papers

20 years of the World Anti-Doping Code in Action

International Sports Law Journal Conference 2025

Asser Institute, The Hague

6 and 7 November 2025

 

The Editors of the International Sports Law Journal (ISLJ), the Asser Institute and the Research Chair on Responsible Sport of the University of Sherbrooke invite you to submit abstracts for the ISLJ Conference on International Sports Law, which will take place on 6 and 7 November 2025 at the Asser Institute in The Hague. The ISLJ, published by Springer and T.M.C. Asser Press, is the leading academic publication in the field of international sports law and governance. The conference is a unique occasion to discuss the main legal issues affecting international sports with academics and practitioners from all around the world. 

 

The 2025 ISLJ Conference will focus on assessing the first 20 years (2004-2024) of operation of the World Anti-Doping Code (WADC) since its entry into force in 2004, while also discussing its future prospects, in light of the new version of the Code due to be adopted at the Busan Conference in December 2025 and the 10th Conference of the Parties to the International Convention against Doping in Sport, to be held in Paris from 20 to 22 October. The aim of the conference will be to take a comprehensive stock of the operation of the private-public transnational regulatory regime which emerged in the wake of the WADC.  This regime is structured around a complex network of national and global institutions engaged in anti-doping work (WADA, NADAs, IFs, accredited laboratories) and guided by an equally complex assemblage of norms located at the global (WADC and the WADA Standards), international (UNESCO Convention against Doping in Sport), regional (Council of Europe Anti-Doping Convention), and national (various national anti-doping legislations) level. This makes for a fascinating and convoluted transnational legal construct in need of being studied, analysed and criticised by scholars. 

 

Reviewing 20 years of implementation of the WADC warrants a special edition of the ISLJ Conference and of the journal, which invites scholars of all disciplines to reflect on the many questions and issues linked with it. We welcome proposals touching on the following subjects (and more): 

  • The governance of the world anti-doping regime
    • The public-private nature of this governance
    • The transparency of this governance
    • The legitimacy of this governance
    • The participatory nature of this governance
    • The role of scientific experts in this governance
  •  The normative content of the WADC and the international standards
    • The strict liability principle 
    • The privacy rights of athletes under the WADC
    • The sanctioning policy under the WADC
    • The role of the international standards in implementing the WADC
    • The compatibility of the WADC with human rights
  • The glocal implementation of the WADC
    • The role of local institutions (NADOs/Labs/NOCs) in the implementation of the WADC
    • The tension between global (WADA) and local (NADOs/Labs/NOCs) in the implementation of the WADC
    • The role of the IFs in the implementation of the WADC
    • The role of the ITA in the implementation of the WADC
    • The role of judicial bodies (national courts, disciplinary committees of IFs, CAS) and their jurisprudence in the implementation of the WADC 
  • The effectiveness of the world anti-doping regime
    • The evaluation and evolution of the effectiveness of the world anti-doping regime in preventing doping
    • The role of the media in unveiling the ineffectiveness of the world anti-doping regime
    • The role of states in hindering the effectiveness of the world anti-doping regime
    • The world anti-doping regime as a regime with a variable geometry of effectiveness
  •  The future of the world anti-doping regime: Revolution, reform or more of the same?
    • Do we need a world anti-doping regime? 
    • If we do, should it be reformed? How? 


Abstracts of 300 words and CVs should be sent no later than 1 June 2025 to a.duval@asser.nl. Selected speakers will be informed by 30 June 2025. The selected participants will be expected to submit a draft paper by 15 October 2025. Papers accepted and presented at the conference are eligible for publication in a special issue of the ISLJ subject to peer-review. The Asser Institute will provide a limited amount of travel and accommodation grants (max. 350€) to early career researchers (doctoral and post-doctoral) in need of financial support. If you wish to be considered for a grant, please indicate it in your submission.  


Zoom-In Webinar - The Aftermath of the Diarra Judgement: Towards a New FIFA Transfer System? - 20 November - 16:00-18:00 CET

On 4 October, the Court of Justice of the European Union shook the world of football with its Diarra ruling. The decision questions the compatibility of a key provision of the FIFA Regulations on the Status and Transfer of Players (RSTP) with European Union internal market law. The RSTP, and in particular its article 17, are the bedrock of football’s transfer ‘market’ and regulate the conditions for the transnational movement of players between clubs. In 2023, based on FIFA’s numbers, 21 801 players were transferred internationally (of which 3279 with a fee) for transfer fees amounting to USD 9.63 bn. In short, this is a market that affects a considerable number of players and is linked with the movement of large sums of money between clubs and other actors (such as intermediaries).

Register HERE

Join us on 20 November from 16:00 to 18:00 CET to take stock of the ruling's impact and discuss the steps ahead in a free Zoom-In webinar in which there will be time for a Q&A session with the speakers. The ruling has already been much commented on (see hereherehere, and here), and this zoom-in webinar will be an opportunity for participants to engage with two experts on the economic and legal intricacies of the regulation of labour relations in football. We will mostly focus on the aftermath of the judgment and the question, 'what comes next?'

Moderator: Marjolaine Viret (Université de Lausanne)

Speakers: 


Register HERE

Free Webinar - The impact of the Diarra case on the football transfer system - 18 October 2024 - 15:00 CET

The Court of Justice of the European Union has recently handed down its judgement in the Lassana Diarra case (C-650/22 FIFA v. BZ).

Given the importance of this case to the sports industry, LawInSport, the Asser Instituut and the Association for the Study of Sport and the EU (Sport & EU) are hosting a joint webinar to bring together experts to unpack and provide clarity on the complex legal, regulatory & commercial issues stemming from this case. This free webinar will be hosted from 14:00 UK time (15:00 CET) on 18 October 2024.


Register HERE 


Speakers

Our expert speakers come from academia, law and sport. Our confirmed speakers are:


Register HERE 

Conference - ISLJ Annual Conference 2024 - 24-25 October - Asser Institute - The Hague

On 24 and 25 October 2024, the Asser Institute in The Hague will host the 2024 edition of the  International Sports Law Journal (ISLJ)  Conference. The ISLJ is the leading academic journal in transnational sports law and governance and is proud to provide a platform for transnational debates on the state of the field. The conference will address a number of issues of interest to the ISLJ and its readers. 

Register HERE

Drivers and effects of reform in transnational sports governance 

Transnational sports governance seems to be in a permanently unstable state of crisis and reform. At regular interval, international sports governing bodies face scandals triggered by corruption investigations or human rights violations, as well as adverse judidicial decisions. These are often followed by waves of institutional reforms, such as the creation of new bodies (E.g. the Athletics Integrity Unit), the adoption of new codes and regulation (such as Codes of Ethics) or human rights commitments (e.g. FIFA and the IOC’s Human Rights Policy/Strategy). This dynamic of crisis and reform will be at the heart of this year’s ISLJ conference, as a number of panels will critically investigate the triggers, transformative effects and limited impacts of reforms in transnational sports governance.  

Football in the midst of international law and relations 
As the war in Gaza and Russia’s invasion of Ukraine continue to rage, it has become even clearer that the football world can hardly be entirely abstracted from international relations. Yet, FIFA and UEFA continue to insist on their neutrality and to deny that their governance is (or should be) affected by the world’s political affairs. During the conference, we will engage with case studies in which football is entangled with international politics and law. In particular, the speakers will delve into the role of FIFA and UEFA in such situations and on the legal standards and processes that should be applied throughout their decision-making.  

Olympic challenges of today and tomorrow 
While the Paris 2024 Olympics have come to a close, the legal questions they have raised are far from exhausted. Instead, the Olympics have highlighted new issues (such as the question of the legality of the hijab ban imposed by the French Federation on its athletes) or old ones (such as the question whether Olympians should be remunerated by the IOC or the international federations), which will be discussed by our speakers. Finally, with the help of our keynote speaker, Prof. Jules Boykoff, a longstanding critique of the current Olympic regime, we will explore the IOC’s capacity to adapt to challenges while resisting radical change to the current model of olympism.   

Download the full programme 

Online participation available 
Following the success of our webinar option in the past years, we are once again allowing online participation to the conference at an affordable price. Thus, we hope to internationalise and diversify our audience and to reach people who are not in a position to travel to The Hague.  

We look forward to welcoming you in person in The Hague or digitally to this new iteration of the ISLJ conference. 

Register HERE

Speakers 


Register HERE


Conference - Empowering athletes’ human rights: Global research conference on athletes’ rights - Asser Institute - 23 October

The newly launched ‘Global Sport and Human Rights Research Network’, an initiative jointly hosted by the T.M.C. Asser Instituut and the Centre for Sport and Human Rights, together with the European Union-funded project ‘Human Rights Empowered Through Athletes Rights (H.E.R.O.)' is organising an in-person conference on October 23 at the Asser Institute in The Hague, to map the field of athletes' rights and engage in critical discussions on protection of these rights and how to prevent rights violations.

The one-day conference will kick off with a presentation by the H.E.R.O. team on their research results, followed by a short panel discussion. The rest of the day will be filled with four panels on different aspects related to the topic of athletes’ human rights, with speakers from academic institutions around the world.

Check out the full programme HERE and register for free HERE

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Asser International Sports Law Blog | Season 2 of football leaks: A review of the first episodes

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

Season 2 of football leaks: A review of the first episodes

Season 2 of #FootballLeaks is now underway since more than a week and already a significant number of episodes (all the articles published can be found on the European Investigative Collaborations’ website) covering various aspect of the (lack of) transnational regulation of football have been released (a short German documentary sums up pretty much the state of play). For me, as a legal scholar, this new series of revelations is an exciting opportunity to discuss in much more detail than usual various questions related to the operation of the transnational private regulations of football imposed by FIFA and UEFA (as we already did during the initial football leaks with our series of blogs on TPO in 2015/2016). Much of what has been unveiled was known or suspected by many, but the scope and precision of the documents published makes a difference. At last, the general public, as well as academics, can have certainty about the nature of various shady practices in the world of football. One key characteristic that explains the lack of information usually available is that football, like many international sports, is actually governed by private administrations (formally Swiss associations), which are not subject to the similar obligations in terms of transparency than public ones (e.g. access to document rules, systematic publication of decisions, etc.). In other words, it’s a total black box! The football leaks are offering a rare sneak peak into that box.

Based on what I have read so far (this blog was written on Friday 9 November), there are three main aspects I find worthy of discussion:

  • The (lack of) enforcement of UEFA’s Financial Fair Play (FFP) Regulations
  • The European Super League project and EU competition law
  • The (lack of) separation of powers inside FIFA and UEFA


I.               The Financial Fair Play and Legal Realism: The (wide) gap between the law in books and the law in action 

In a famous article dating back to 1910, Roscoe Pound coined the distinction between law in books and law in action. It highlighted an obvious (but often underestimated) fact: laws do not speak by themselves. Moreover, laws are never clear, as they must be interpreted in the context of concrete cases. Until now, much of the second season of the football leaks was dedicated to UEFA’s lenient enforcement of its FFP rules against numerous clubs (in particular Manchester City and PSG). In other words, to the (wide) gap between the law in books and the law in action. What becomes clear from the articles devoted to this topic (see here, here and here) is that the UEFA FFP rules are far from clear and that the certain clubs were very creative in devising ways to play with the boundaries of the wording of the rules.

These clubs have used various stratagems (mainly inflated sponsorship agreements, but not only) to try to convince UEFA that they complied with the rules. However, the leaks demonstrate that they did not manage to fool the governing body, which had many reports on its desk identifying the immense gap (1 to 100) between independent valuations of the deals and their face value. In short, UEFA knew it was being played and that in particular PSG and Manchester City were playing with the interpretative frontiers of the FFP rules in order to circumvent them (or at least their spirit) in a not-so-subtle way. Yet, the practical meaning of the law in books always depends on those that guide the law in action, that’s why the independence and transparency of judicial institutions (such as the UEFA Club Financial Control Body (CFCB)) is so important. In the case of UEFA’s CFCB, the football leaks show that the settlements reached with the clubs in spring 2014 were primarily the result of a political decision, driven by the then UEFA Secretary General (Gianni Infantino), who saved PSG and Manchester City by reducing their break-even deficits through a gigantic overvaluing of their sponsorship contracts. Whether this decision is in line with the spirit and objectives of the UEFA CL & FFP Regulations is highly doubtful. Moreover, it seems legitimate for other clubs (such as Galatasaray or Dynamo Moscow), which have faced harsher sanctions, to feel that they have been discriminated against. Until now, due to the lack of detailed information available on the underlying financial situations in specific cases, this was particularly difficult to evidence. The football leaks have brought some transparency and certainty to this matter, and other clubs facing UEFA sanctions on the basis of FFP breaches will certainly rely on it in the future. Hence, these revelations damage UEFA’s reputation as a serious and equitable governing body and its portraying of the FFP rules as a tremendous success.

The football leaks do not, however, touch upon the issue of the legality of the FFP rules, a mechanism that fundamentally aims to restrain the capacity of owners to use financial leverage to boost their clubs. But, why should wealthy owners of PSG and Manchester City not be allowed to use their billions to help their clubs win the Champions League? It might be a bad economic investment or the returns in terms of positive PR might not materialise as expected, but this is rather a problem for the citizens of Qatar and the United Arab Emirates who are burning their oil & gas resources on it. In fact, nobody thinks of stopping Tesla from investing mountains of cash until now at huge loss (the same is true for Uber). Moreover, the FFP rules, if properly enforced, would primarily freeze the existing inequalities and reinforce the grip of a small group of dominant clubs on national and European club competitions. Maybe it is actually a good thing that UEFA is not taking them seriously (here speaks the PSG fan in me). Nonetheless, I (the reasonable academic) personally believe that there is a viable justification for the UEFA FFP rules and it is to protect football (and its adjacent markets) from speculation and to put a brake on the tendency of the owners to irrationally overinvest. In other words, the rules play a necessary counter-cyclical role. Without them the drive for short term success would fuel not only the deregulated transfer market but also put the long-term existence of football clubs at risk (and they are often too popular to fail). However, it must be complemented with other regulatory mechanisms if the widening inequality between clubs in Europe is to be corrected. On this too, the football leaks had very interesting things to show.


II.             The Super League and EU law: Leveraging competition law against free and fair competition

« In view of the considerable social importance of sporting activities and in particular football in the Community, the aims of maintaining a balance between clubs by preserving a certain degree of equality and uncertainty as to results and of encouraging the recruitment and training of young players must be accepted as legitimate. » (Bosman ruling, para. 106)

There is healthy amount of legal irony in the football leaks story (see here) about the projected European ‘Super League’. It seems a group of major clubs have relied on legal advise based on EU competition law to push forward a scheme to breakaway from the football plebs and devise a new, more lucrative, and most importantly exclusive competition. Whether they truly planned to go ahead or needed the plan to look as credible as possible to strengthen their hand in the discussions with UEFA on reshaping the Champions League is moot. The point is that they have in practice leveraged EU competition law to reduce competitive balance and secure their collective dominance vis-à-vis their national/European competitors. Here comes the million-dollar question: How come EU competition law can be exploited to reduce competition?

This is in my view largely due to a widespread misinterpretation of the impact of EU law on SGBs’ regulations. Be it under the free movement or the competition rules, the EU welcomes private regulations through SGBs but exercises a rationality test on them: SGBs must demonstrate that their rules and decisions pursue a legitimate objective (not limited to their economic well-being) and are reasonable (or proportionate) to attain that objective. In other words, they must demonstrate what they often publicly claim, that they are acting for the public good when regulating their sport. In practice, it means that if you threaten a speed-skater with a lifelong ban for participating in non-sanctioned events that do not even conflict with your own competitions, you need to explain why and show that the chosen regulatory option is not too harsh on the speed skater. This is roughly the situation in the ISU case, in which the EC found the ISU eligibility rules to be contrary to EU competition law because of two main reasons. First, the ISU did not provide any convincing justifications for its threat of a lifelong ban on skaters taking part in unsanctioned events. Moreover, and most importantly, the lifelong ban was a disproportionate mean to attain any potentially legitimate aim, e.g. a solidarity contribution or a shorter ban could have constituted less restrictive alternatives. This does not mean, however, that UEFA and FIFA could not for example justify a temporary ban from national teams (and thus from the FIFA World Cup or UEFA European Championship) for players taking part in the Super League or exclude temporarily clubs taking part in the Super League from national competitions and/or fine them. If these measures are necessary to maintain the competitive balance or preserve the solidarity mechanisms inside the football pyramid, they might very well be justified. It is important to remember here that AG Lenz was in §§ 218-234 of his Opinion in the Bosman case advocating redistributive measures (in particular the equal distribution of TV rights) which are extremely restrictive of the economic freedom of the clubs. his proposals were endorsed by the Court of Justice in paragraph 110 of its final Bosman judgment.

In short, it is erroneous to believe (as so many do) that EU law supports and encourages the economically selfish behaviour of the biggest clubs. The opposite is true: EU law recognises the need for competitive balance and redistribution in sport and it is also ready to accept the legitimacy of the SGBs’ regulations. The irony illustrated by the football leaks is that EU law is being invoked by a cartel of powerful clubs to entrench their dominant position in the European football market. Such a twisted use of EU law would not stand the whisper of a chance at the CJEU.


III.           Infantino and the Separation of Power at FIFA and UEFA: The ills of executive dominance in football

Finally, if there is a governance red thread throughout the information published in the framework of the football leaks, it is the extent to which they illustrate the dominance of executives in the governance of football (and sports in general). Both at the UEFA and FIFA, Gianni Infantino, like Blatter a pure product of the football bureaucracy and an impersonation of its profound Swiss roots, routinely intervened in the work of pseudo independent bodies. Thus, as mentioned above, he was personally and directly involved in the negotiations with PSG and Manchester City over their compliance with the UEFA FFP rules. Assuming that the email exchanges reported are true, he is the one who struck a deal with both clubs leading to a settlement of the cases and not the ‘independent’ investigator of the UEFA CFCB. This obviously damages the integrity of the CFCB and hints at the discretionary nature of its decision-making contrary to a basic principle of the rule of law: equality before the law. 

Another example of the lack of separation of powers inside FIFA and UEFA, despite powers being officially separate on paper, is the drafting process of the newly released FIFA Code of Ethics. The Ethics Committee can propose amendments of the Code of Ethics to the FIFA Council (Article 54 FIFA Statutes 2018). The executive bodies of FIFA, which are the prime addressees of the Code, are not supposed to have a say in the substance of these amendments. However, in practice, the emails obtained by the football leaks show that Infantino did not only receive a copy of the draft, but also provided comments and suggestions, which were mostly adopted. Again this process highlights a core governance failure at FIFA, already displayed through its policy of hiring and firing independent ethics staff and the consequent lack of truly independent counter-powers to the massive executive powers of the President. As long as no Chinese wall is erected between the executive bodies of FIFA/UEFA and their judicial bodies (including the CAS), we will continue to see instances of maladministration and abuses of power in football. Their independence must be secured through institutional guarantees such as strict conflict of interests rules and secured term limits, as well as a much greater transparency of the proceedings including the systematic publication of the full disciplinary decisions.


Conclusion: The public virtue of the leak

'Without publicity, no good is permanent; under the auspices of publicity, no evil can continue.' (Jeremy Bentham in Essay of political tactics)

The revelations of the football leaks will not come as a major surprise to those following football. Many suspected that PSG and Manchester City were getting quite a good deal at UEFA’s CFCB, many could well imagine that the big clubs strong-armed UEFA into a new Champions League set-up with a threat of breaking away, and many guessed that Infantino was exercising pressure and influence over ‘independent’ bodies at FIFA and UEFA. Yet, few could prove it. Thus shielding UEFA, FIFA, the major clubs and Infantino from well-deserved public criticisms. Now, the public knows. We (the people of football) can decide how we want football to be regulated and by whom. Miguel Maduro, the ephemeral former head of FIFA’s Governance Committee, who was dismissed after barring Russia’s deputy prime minister, Vitaly Mutko, from taking a position at the FIFA Council, has suggested (in a must-watch talk he gave at the Asser Institute during #ISLJConf17) that we need a specific EU agency to oversee the governance of UEFA and FIFA. It is an idea worth exploring, which will require a lot of political capital and determination to be implemented. This political will can only be marshalled if the public loudly demands change. In this regard, I’m not sure whether this round of football leaks will suffice, but it will highlight again how football is currently run by organisations and people which are disregarding all basic principles of decent governance, often with nothing else in mind than their own economic interests. This is not a natural and permanent state of affairs. It can change. It will change.

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