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

Report from the first ISLJ Annual International Sports Law Conference - 26-27 October at the T.M.C. Asser Instituut

Close to 100 participants from 37 different countries attended the first ISLJ Annual International Sports Law Conference that took place on 26-27 October 2017 in The Hague. The two-day programme featured panels on the FIFA transfer system, the labour rights and relations in sport, the protection of human rights in sport, EU law and sport, the Court of Arbitration for Sport, and the world anti-doping system. On top of that, a number of keynote speakers presented their views on contemporary topics and challenges in international sports law. This report provides a brief summary of the conference for both those who could not come and those who participated and would like to relive their time spent at the T.M.C. Asser Institute.More...

International and European Sports Law – Monthly Report – October 2017. By Tomáš Grell

Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked. 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...


International and European Sports Law – Monthly Report – September 2017. By Tomáš Grell

Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.

 

The Headlines 

2024 and 2028 Olympic Games to be held in Paris and Los Angeles respectively

On 13 September 2017, the Session of the International Olympic Committee (IOC) held in Lima, Peru, elected Paris and Los Angeles as host cities of the 2024 and 2028 Olympic Games respectively. On this occasion, the IOC President Thomas Bach said that ''this historic double allocation is a 'win-win-win' situation for the city of Paris, the city of Los Angeles and the IOC''. The idea of a tripartite agreement whereby two editions of the Olympic Games would be awarded at the same time was presented by a working group of the IOC Vice-Presidents established in March 2017. Both Paris and Los Angeles have pledged to make the Olympic Games cost-efficient, in particular through the use of a record-breaking number of existing and temporary facilities. In addition to economic aspects, it will be worthwhile to keep an eye on how both cities will address human rights and other similar concerns that may arise in the run-up to the Olympic Games. More...

The limits to multiple representation by football intermediaries under FIFA rules and Swiss Law - By Josep F. Vandellos Alamilla

Editor’s note: Josep F. Vandellos Alamilla is an international sports lawyer and academic based in Valencia (Spain) and a member of the Editorial Board of the publication Football Legal. Since 2017 he is the Director of  the Global Master in Sports Management and Legal Skills FC Barcelona – ISDE.

I think we would all agree that the reputation of players’ agents, nowadays called intermediaries, has never been a good one for plenty of reasons. But the truth is their presence in the football industry is much needed and probably most of the transfers would never take place if these outcast members of the self-proclaimed football family were not there to ensure a fluid and smooth communication between all parties involved.

For us, sports lawyers, intermediaries are also important clients as they often need our advice to structure the deals in which they take part. One of the most recurrent situations faced by intermediaries and agents operating off-the-radar (i.e. not registered in any football association member of FIFA) is the risk of entering in a so-called multiparty or dual representation and the potential risks associated with such a situation.

The representation of the interests of multiple parties in football intermediation can take place for instance when the agent represents the selling club, the buying club and/or the player in the same transfer, or when the agent is remunerated by multiple parties, and in general when the agent incurs the risk of jeopardizing the trust deposited upon him/her by the principal. The situations are multiple and can manifest in different manners.

This article will briefly outline the regulatory framework regarding multiparty representation applicable to registered intermediaries. It will then focus on provisions of Swiss law and the identification of the limits of dual representation in the light of the CAS jurisprudence and some relevant decisions of the Swiss Federal Tribunal.More...



The Evolution of UEFA’s Financial Fair Play Rules – Part 3: Past reforms and uncertain future. By Christopher Flanagan

Part Two of this series looked at the legal challenges FFP has faced in the five years since the controversial ‘break even’ requirements were incorporated. Those challenges to FFP’s legality have been ineffective in defeating the rules altogether; however, there have been iterative changes during FFP’s lifetime. Those changes are marked by greater procedural sophistication, and a move towards the liberalisation of equity input by owners in certain circumstances. In light of recent statements from UEFA President Aleksander Čeferin, it is possible that the financial regulation of European football will be subject to yet further change. More...

The Evolution of UEFA’s Financial Fair Play Rules – Part 2: The Legal Challenges. By Christopher Flanagan

The first part of this series looked at the legal framework in which FFP sits, concluding that FFP occupied a ‘marginal’ legal position – perhaps legal, perhaps not. Given the significant financial interests in European football – UEFA’s figures suggest aggregate revenue of nearly €17 billion as at clubs’ 2015 accounts – and the close correlation between clubs’ spending on wages and their success on the field,[1] a legal challenge to the legality of FFP’s ‘break even’ requirement (the Break Even Requirement), which restricts a particular means of spending, was perhaps inevitable.

And so it followed.

Challenges to the legality of the Break Even Requirement have been brought by football agent Daniel Striani, through various organs of justice of the European Union and through the Belgian courts; and by Galatasaray in the Court of Arbitration for Sport. As an interesting footnote, both Striani and Galatasaray were advised by “avocat superstar” Jean-Louis Dupont, the lawyer who acted in several of sports law’s most famous cases, including the seminal Bosman case. Dupont has been a vocal critic of FFP’s legality since its inception. More...





The Evolution of UEFA’s Financial Fair Play Rules – Part 1: Background and EU Law. By Christopher Flanagan

Editor's Note: Christopher is an editor of the Asser International Sports Law Blog. His research interests cover a spectrum of sports law topics, with a focus on financial regulatory disputes, particularly in professional football, a topic on which he has regularly lectured at the University of the West of England.

 

It is five years since the Union of European Football Associations (UEFA) formally introduced ‘Financial Fair Play’ (FFP) into European football through its Club Licensing and Financial Fair Play Regulations, Edition 2012. With FFP having now been in place for a number of years, we are in a position to analyse its effect, its legality, and how the rules have altered over the last half decade in response to legal challenges and changing policy priorities. This article is split into three parts: The first will look at the background, context and law applicable to FFP; Part Two will look at the legal challenges FFP has faced; and Part Three will look at how FFP has iteratively changed, considering its normative impact, and the future of the rules. More...


International and European Sports Law – Monthly Report – July and August 2017. By Tomáš Grell

 Editor's note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser.

 

The Headlines

ISLJ Annual Conference on International Sports Law 

On 26 and 27 October 2017, the T.M.C. Asser Institute in The Hague will host the first ever ISLJ Annual International Sports Law Conference. This year's edition will feature panels on the Court of Arbitration for Sport, the world anti-doping system, the FIFA transfer regulations, human rights and sports, the labour rights of athletes, and EU law and sport. We will also welcome the following distinguished keynote speakers:

  • Miguel Maduro, former Advocate General at the European Court of Justice and former head of the FIFA's Governance Committee;
  • Michael Beloff QC, English barrister known as one of the 'Godfathers' of sports law;
  • Stephen Weatherill, Professor at Oxford University and a scholarly authority on EU law and sport;
  • Richard McLaren, CAS Arbitrator, sports law scholar and former head of the World Anti-Doping Agency's investigation into the Russian doping scandal.

You will find all the necessary information related to the conference here. Do not forget to register as soon as possible if you want to secure a place on the international sports law pitch! [Please note that we have a limited amount of seats available, which will be attributed on a 'first come, first served' basis.] More...

Asser International Sports Law Blog | Sports Politics before the CAS II: Where does the freedom of speech of a Karate Official ends? By Thalia Diathesopoulou

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

Sports Politics before the CAS II: Where does the freedom of speech of a Karate Official ends? By Thalia Diathesopoulou

On 6 October 2014, the CAS upheld the appeal filed by the former General Secretary of the World Karate Federation (WKF), George Yerolimpos, against the 6 February 2014 decision of the WKF Appeal Tribunal. With the award, the CAS confirmed a six-months membership suspension imposed upon the Appellant by the WKF Disciplinary Tribunal.[1] At a first glance, the case at issue seems to be an ordinary challenge of a disciplinary sanction imposed by a sports governing body. Nevertheless, this appeal lies at the heart of a highly acrimonious political fight for the leadership of the WKF, featuring two former ‘comrades’:  Mr Yerolimpos and Mr Espinos (current president of WKF). As the CAS puts it very lucidly, "this is a story about a power struggle within an international sporting body"[2], a story reminding the Saturn devouring his son myth.

This case, therefore, brings the dirty laundry of sports politics to the fore. Interestingly enough, this time the CAS does not hesitate to grapple with the political dimension of the case.


Background and Facts of the Case: ‘The K on its way’ to leadership battles 

The third successive failure of the WKF to have Karate included in the Programme of the 2020 Tokyo Olympics -after the failed campaigns for inclusion in the 2012 London and 2016 Rio Olympics, respectively- spared disappointment in the ranks of the WKF and gave rise to a political war, led by the former ‘crony’ Mr Yerolimpos who used these failures to challenge WKF president Espinos. 

In the wake of concerns raised by some members of national Karate federations, in June and July 2013, the Appellant emailed the WKF Treasurer twice, questioning the lack of transparency on financial matters and challenging the leadership of the current president. The second email where the Appellant directly accused  Espinos of serious mismanagements was copied to all Executive Committee (EC) members and to the presidents of all Karate NF‘s. Following this “dirty manifesto” - in the words of WKF Treasurer[3], Espinos considered that the Appellant’s behavior amounted to a serious breach of the necessary relationship of confidence with the president. As a result, by application of Article 14.7 of the WKF Statutes, he revoked by email the Appellant from his position as Secretary General of WKF. The email battle continued with the Appellant accusing Espinos of manipulating the democratic processes. However, on 14 August 2013, the Appellant’s revocation was ratified by the EC members through an electronic vote, pursuant to Article 13.20 of the WKF Statutes. 

Then, on a request by the WKF Executive Bureau, the Disciplinary Tribunal (DT) of the WKF Disciplinary Legal Commission (TDC) opened disciplinary proceedings against the Appellant in order to examine whether the Appellant’s emails resulted in infringement of Article 9 of the WKF Statutes[4], i.e. his duty to act in a manner commensurate with his role at the WKF. On 30 October 2013, the DT decided to suspend the Appellant from membership of the WKF and EC for six months. It found that the Appellant’s conduct was in breach of his duties entrenched in Articles 9 and 13.2.5 of the WKF Statutes, since his criticism against the WKF president relied on subjective, unproven and unsubstantiated considerations.  More importantly, his criticism was directly circulated to the Karate NFs, without having previously debated them within the WFK Executive Bureau. The DT decision was appealed before the WKF Appeal Tribunal (AT), which on 6 February 2014 confirmed the first instance decision, finding that the content of the Appellants’ emails was prejudicial, defamatory, amounting to a serious violation of Article 9.2 and 13.25 (3) of the WKF Statutes. 

Lastly, the Appellant’s appeal before CAS dating from 26 February 2014, was set aside on 6 October 2014.       


Two main axes in the CAS reasoning 

In his appeal, the Appellant submitted a set of contentions. Specifically, he alleged: (1) the improper initiation of the disciplinary proceedings; (2) the non-identification of relevant offence in Articles 9 and 13.25.3 of the WKF Statutes; (3) the non-violation of these articles by the Appellant; (4) the violation of the principle ne bis in idem in double sanctioning the Appellant; (5) the violation of due process by the DT and AT Panels and finally; (6) the violation of the principle of proportionality in the sanctions imposed by the DT and AT Panels. 

The main focal point of the dispute lies on whether the Appellant’s defamatory emails constitute a serious misconduct and breach the relevant disciplinary provisions of the WKF Statutes. Therefore, this commentary will focus on how the CAS dealt with the interpretation of the disciplinary provisions laid down in Articles 9 and 13.25.3 of the WKF Statutes. Particularly, the commentary will map the CAS reasoning on the following issues: (a) the nature of the misconduct proscribed by the disciplinary provisions of the WKF Statutes and (b) the assessment of the duties bearing on the General Secretary of WKF in the political context of this case.

(a)The violation of Articles 9 and 13.25.3 WKF Statutes.

It is well established that a sports governing body may impose disciplinary sanctions upon its members if they are found guilty of a disciplinary offence, which has to be enshrined in the applicable rules and regulations. In the case at hand, before examining whether the Appellant by sending the above mentioned emails acted in violation of Articles 9and 13.25.3[5] WKF Statutes, the CAS has to examine what type of conduct is covered by these disciplinary provisions. In other words, how do the Articles 9 and 13.25.3 define the offence committed by the Appellant, i.e. the violation of his duty to act in the best interests of the WKF?

Firstly, the CAS takes into account that, in principle, the disciplinary provisions of sports governing bodies statutes are broadly drafted and, therefore, the principle of criminal law nulla poena sine lege does not apply in the case at issue. However, the question remains whether the broadly drafted Articles 9 and 13.25.3 encompass the allegedly offensive behavior of the Appellant. According to the Panel, it is not sufficient that the drafters of the WKF disciplinary provisions intended to entail “the multifarious forms of behavior considered unacceptable” [6] in karate, but whether they actually achieved it. Concretely, as far as Article 9.2 is concerned, the CAS proceeds by identifying two separate obligations for the members: the first entails compliance with the rules of the sport and the second refers to the maintenance of an appropriate conduct in any activity performed. Following an interpretation of the wording of Article 9.2 and particularly of the word "maintaining" which lies between the two obligations (as juxtaposed to the meaning of the word "gardant" in the French version of Article 9.2) the CAS concludes that there is an inextricable link between these obligations.[7] As a result, Article 9.2 sets two prerequisites for the fulfillment of the duty imposed: the members should comply with the rules of sport and additionally should adopt the appropriate demeanour. In practice, this means that at first, a rule has to be breached. While in the case at hand the CAS accepts that the rules of sport can be interpreted in a broad manner and refer not only to the rules of karate itself, the CAS notes that neither the Respondent nor the Panel have identified a rule proscribing the alleged offensive behavior of the Appellant. Thus, the inappropriate conduct of the Appellant cannot amount to a violation of the duty enshrined in Article 9.2.

With regard to the interpretation of the General Secretary’s duties laid down in Article 13.25.3, the CAS remarks that its scope does not overlap with Article 9.2. However, even if Article 13.25.3 is examined in isolation of the requirements of the other disciplinary provisions, the CAS notes that the Appellant’s conduct cannot be considered as amounting to an inappropriate demeanour in fulfilling his duties of maintaining relations with international federations. Indeed, the Appellant’s emails entailed a criticism against the president, involving national federations as well, but according to the CAS this criticism does not constitute a breach of the duty envisaged in Article 13.25.3.

Therefore, having concluded that the alleged conduct of the Appellant does not constitute the subject matter of any offence provided in the relevant regulations, the question whether the Appellant acted in breach of any rule has been rendered moot.

(b) The freedom of speech of the General Secretary of WKF

As mentioned above, the CAS had not identified a violation of the existing disciplinary provisions of the WKF. Nevertheless, it felt the remarkable urge to complement this reasoning with a broader reflection on the freedom of speech in sports governing bodies. To this end, the panel engaged in a very interesting dictum: "The Panel, however, because of first the importance of the issues; secondly out of respect for the excellent way in which the submissions were presented, thirdly against the contingency of an appeal on the Panels conclusion on the absence of any relevant offence in the WKF code, will deal with them succinctly".[8]

Herewith, the CAS underlines the right of the Appellant, and more generally of the members of sports governing bodies, to freedom of speech. This materializes more precisely in a fundamental right to criticize, in good faith, the acts and decisions of the governing authority, even if the criticism includes errors of facts. While the CAS acknowledges the political motives of the criticism, it underlines the valuable contribution of this criticism in exposing acts of mismanagement. These considerations on the democratic principle of the right to criticize those in positions of authority, are reinforced by the European Court of Human Rights’ (ECHR) jurisprudence and the principle enshrined in Article 10 of the European Convention on Human Rights.[9] In this sense, the panel takes two important steps. Firstly, it recognizes the controversial[10] applicability of rights enshrined in the European Convention on Human Rights to disciplinary proceedings of sports governing bodies, which are purely private entities, by indicating that the jurisprudence of ECHR is compulsive in jurisdictions to which it applies, and in any case is at least indicative. Secondly, the panel does not hesitate to take a clear position –from a sports politics point of view- establishing that the members of the sports governing bodies have a fundamental right to exercise their freedom of speech to criticize political authorities. It seems, therefore, that this CAS panel feels at ease with its role as a Supreme Court of Sports protecting the fundamental rights of the ‘citizens of world sports’.

In the second limb of its reasoning, the CAS suggests the rules of conduct that members of sports governing bodies should follow when exercising their established right to criticism.[11]Indeed, according to the CAS, the exercise of the right of freedom to speech is subject to two restrictions: the criticism which targets the authority of the sports’ governing body must be lawful and members must demonstrate self-restraint in the exercise of their right. In this light, the CAS finds that the Appellant did not act unlawfully or in bad faith, but he rather exceeded the limits by ignoring the internal procedures available to him. In other words, the Appellant erred in the way he chose to ventilate his criticisms against the current president. Thus, damaging the WKF’s image worldwide. This interpretation elaborated by the CAS seems to be inspired by the so called ‘balancing exercise’ between Articles 8 and 10 European Convention on Human Rights[12]: an interference in the internal affairs of a sports governing body can be justified when it is in accordance with the law and is necessary in the interests of the world sports community. 


Conclusion

In our previous blogpost, we described the CAS hands-off approach in a political conflict internal to a sports governing body. We suggested, instead, that a modicum of interventionism in sports politics would be compatible with the CAS role. In this light, the WKF case is a good illustration of a CAS panel delving into sports politics to uphold certain fundamental political rights. From the preamble to the conclusion of this award, the CAS did not hesitate to interpret the political motives of the parties and their subsequent acts. More importantly, taking into account the law making role of CAS panels in promoting consistency in international sports law, this CAS panel adds to the so-called lex sportiva a democratic resonance, preserving also the freedom of speech of members of sports governing bodies.



[1] CAS 2014/A/3516, George Yerolimpos v. World Karate Federation

[2] Ibid, para 1.

[3] Ibid, para 25.

[4] 9.1 National Federations and individual persons affiliated to the WKF shall undertake to comply with statutory norms, rules and regulations and all provisions issued by the Executive Committee.

9.2 Members shall undertake work in complete compliance with the rules governing the sport, maintaining a demeanour commensurate with the activity performed.

9.3 Any member in breach of the conditions as per points 9.1 and 9.2 above shall be liable to disciplinary action as set forth herein.

[5] The duties of a General Secretary shall be: (a) Execute the decisions taken by the Executive Committee;

(b)To maintain relationships with the continental federations, with the affiliated National Federations and with outside parties; (c) Draw up and take care of the minutes of the Executive Committee and of the Congress Meetings.

[6] CAS 2014/A/3516 (n1), para 105.

[7] Ibid, para 107.

[8] Ibid, para 115.

[9] European Convention on Human Rights, Article 10

Freedom of expression: 1. everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

[10]C Favre-Bulle and others, L’arbitrage et la Convention Européenne des Droits de l’Homme (2001), 73.

[11] CAS 2014/A/3516 (n1), para 117.

[12] ECHR 227 Axel Springer AG v Germany 39954/08 [2012] paras  84-95 & ECHR 228 Von Hannover v Germany (n2) 40660/08[2012] para 100 .

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