Introduction: The new WADA Code 2015
Day 2: The “Athlete Patient” and the 2015 World Anti-Doping Code: Competing Under Medical Treatment
Day 3: Proof of intent (or lack thereof) under the 2015 World Anti-Doping Code
Day 4: Ensuring proportionate sanctions under the 2015 World Anti-Doping Code

Editor's note
Herman Ram is the Chief Executive Officer of the Anti-Doping Authority the Netherlands, which is the National Anti-Doping Organization of the country. He has held this position since 2006. After working twelve years as a librarian, Herman Ram started his career in sport management in 1992, when he became Secretary general of the Royal Netherlands Chess Federation. In 1994, he moved on to the same position at the Netherlands Badminton Federation. He was founder and first secretary of the Foundation for the Promotion of Elite Badminton that was instrumental in the advancement of Dutch badminton. In 2000 he was appointed Secretary general of the Netherlands Ski Federation, where he focused, among other things, on the organization of large snowsports events in the Netherlands. Since his appointment as CEO of the Anti-Doping Authority, he has developed a special interest in legal, ethical and managerial aspects of anti-doping policies, on which he has delivered numerous presentations and lectures. On top of that, he acts as Spokesperson for the Doping Authority. Herman Ram holds two Master’s degrees, in Law and in Sport Management.

Introduction
The 2015 World Anti-Doping Code is not a new Code, but a revision of the 2009 Code. In total, 2,269 changes have been made (see here for the redlined version). Quite a number of these changes are minor corrections, additions and reformulations with little or no impact on the work of NADOs. But the number of truly influential changes is still impressive, which makes it hard to choose.

Luckily, WADA has identified the – in their view – more significant changes in a separate document and I have used this document to bring some order in a number of comments that I want to make on the impact of those revisions on our daily work.

Part of what follows is based on our experiences with the implementation of the revised Code so far, but quite a bit of what follows cannot be based on any actual experience, because the revised Code has only been in place for seven months, and only a rather small number of disciplinary procedures in relatively simple cases have come to a final decision under the revised rules. As a result, and because I am not in the business of predicting the future, on this occasion I have decided to share some of my expectations with you. Only the future can tell whether I am right on those issues.

Theme 1: sanctions
Probably the most discussed aspect of the revision is the longer period of ineligibility that can be imposed on – as WADA formulates it – ‘real cheats’. In other cases, especially cases of unintentional violations, the revision should lead to more flexibility to impose lower sanctions. Due to the amendments in most cases it will be crucial to establish ‘intent’ – or the lack of it – in order to be able to determine the appropriate sanction. And because of the Strict liability principle that applies to the burden of proof in cases with Adverse Analytical Findings, NADOs have not focused very much on the establishment of ‘intent’, simply because under the previous Codes it was not relevant for the outcome of most cases.

In the case of non-specified substances, it is now up to the athlete to prove that the violation was not intentional, and in the case of specified substances it is up to the (N)ADO to prove intent. This is new, and our current practice shows that this kind of evidence is very hard to deliver for both parties. As a consequence, four year sanctions have been imposed rather matter-of-factly until now in cases where non-specified substances are involved. And such severe sanctions will remain common if non-specified substances are detected, but they will be quite rare in other cases. No doubt, jurisprudence will be developed that will help to assess specific situations, but for most cases the four year sanction will more or less automatically result from the simple fact that a non-specified substance is involved.

Some exploratory analysis of the sanctions imposed under the 2009 Code for specified substances has shown that panels have already established a practice with a lot of flexibility in those kind of cases under the 2003 and 2009 Codes, and I do not expect major changes there.

Quite interesting from our (NADO’s) point of view is Article 10.6.3, which introduces a role for both the (N)ADO with result management responsibility and WADA in cases where athletes or other persons promptly admit an anti-doping rule violation. If both the (N)ADO and WADA agree, a sanction reduction from four years to a minimum of two years is possible. We do not yet know what WADA’s position will be in this kind of cases, but I do know that many NADOs will be inclined to grant a reduction of the period of ineligibility, because we want to stimulate admissions as much as possible. Information given by athletes and other persons is most valuable, and (less important, but still…) we can spare ourselves a lot of costly work in the process.

Somewhat related to prompt admissions (not new, but amended and expanded in the revised Code) is the possibility to reduce sanctions based on substantial assistance (Article 10.6.1). Because of the growing importance of Investigations and Intelligence (see Theme 3 below) and the increased emphasis on Athlete Support Personnel (Theme 4) I think that we will see that this Article will become more important in the work of NADOs. It seems to me that the revisions will help us considerably in all cases where athletes or other persons need reassurance that an agreed-upon reduction of sanctions will be respected ‘no matter what’. At the same time, more information will become available that may help us in uncovering and prosecuting other anti-doping rule violations.

Theme 2: proportionality and human rights
I can be quite short here: I have not identified a single consequence of this Theme for the NADO that I work for, and I can hardly imagine that other developed NADOs will see this differently. This is not because this Theme is not important (quite the contrary) but because NADOs do not need extra encouragement in order to ensure that proportionality and human rights are taken into consideration on an everyday basis. And because – at least in Europe – data protection issues and the related issues of public disclosure and the protection of minors are primarily governed by legislation, not by the Code.

Theme 3: Investigations and intelligence
Indeed, the development of ‘Intelligence & Investigations’ is one of the major issues that quite a few NADOs are dealing with now. In less than two years’ time, more than a dozen NADOs have attracted new staff for this purpose, and cooperation between NADOs (and some IFs) in this field is gradually developing, at a pace that is primarily determined by taking care of the legal side of things. The Code revision has not initiated this development, but it certainly confirms and strengthens it. And we are well aware that Intelligence has played a major role in practically all cases (old and recent) where large-scale, organized, doping practices have been uncovered. Which does not mean that we are all prepared for this kind of thing…

First of all, it is necessary to develop and sign bilateral cooperation agreements in which the preconditions for sharing information between (N)ADOs are defined. I have signed several, and there are more to come. But it is also necessary to start and develop a cooperation with customs and law enforcement agencies, and this kind of cooperation needs even more legal preparation in order to be successful (or just possible). Indeed, information sharing with government agencies is just as logical as it is complicated in practice.

I do not know one NADO that does not feel the need for cooperation with law enforcement agencies. And that fact, supported by the revised Code, means that NADOs are slowly but surely getting better acquainted with government agencies. It is my opinion that several legislation proposals in various countries in Europe illustrate this development nicely. Countries which have done without specific anti-doping legislations for years – including my own country – are now working on legal measures that aim to facilitate a close(r) cooperation between governments and (N)ADOs (in line with the expansion of Article 22.2 in the 2015 Code).

The investigative powers of Intelligence Officers of NADOs on the one hand, and law enforcement agents on the other hand, are wide apart. In most countries, an Intelligence Officer has no other rights than any citizen, while there are elaborate laws that define and regulate what law enforcement officers may and may not do. The gap between the two has to be narrowed, in order to facilitate and stimulate further cooperation. Which means that Intelligence Officers will need to have specific authorizations that enable them to do their job within sport, but without becoming law enforcement officers themselves. The solutions will be different per country, but the common factor will be that NADOs will have more tools to fulfil their tasks.

Apart from these legislative and regulatory developments, which open doors that have been firmly closed until now in many countries, there are not many ’quick wins’ to be expected because of ‘Intelligence & Investigations’. In the long run, however, ‘Intelligence & Investigations’ will probably have a significant impact on the effectiveness of doping control programs, which will not really become ‘smarter’ (more brain power has been invested in the testing programs under the 2003 and 2009 Codes than most people can imagine), but certainly more ‘targeted’ and tailor-made. This may be an equally important effect of ‘Intelligence & Investigations’ as collecting evidence.

The extension of the statute of limitations (Article 17) to ten years will not make a big difference in numbers, but the cases where this extension pays off, will for a large part be the kind of cases that we find especially important to bring to justice. There is a downside to this as well, of course, and one of the aspects that I have not seen mentioned often is the fact that relevant samples will have to be stored for another two years, which will lead to additional costs. Few people realize how expensive the storing of samples – under the right conditions – is.

Theme 4: Athlete Support Personnel (ASP)
This Theme is closely connected to Theme 3, because anti-doping rule violations by Athlete Support Personnel cannot be proven by the traditional means of proof of ADOs, i.e. the analysis of urine and blood samples. There can be no doubt that catching those coaches and doctors that supply and administer doping to the athletes must be a high priority for NADOs. We are well aware that athletes do not function in a vacuum. As a consequence, NADOs will dedicate a considerable part of their ‘Intelligence & Investigations’ capacity to ASP. A rise in the number of cases where ASP is involved can be predicted, although – unfortunately – a huge effect is unlikely. Not only because these cases will always be hard to prove (no matter what) but also because large groups of ASP are not (properly) bound by anti-doping regulations. The seriousness of this problem varies per country and per sport (discipline), and the problem may – at least partly – be solved through legislation. But in my own country, I do not see how the Code revision will help the NADO in prosecuting ASP, unless and until we manage to find ways to sufficiently bind all relevant ASP to our rules.

The new anti-doping rule violation ‘Prohibited Association’ brings us some serious new challenges, I think. One of them being the burden of proof, which often will not be easy to discharge. Here again, ‘Intelligence & Investigations’ will play a crucial role. But even if it can be proven that an athlete is working with an ineligible coach, trainer or doctor, there may be several legal challenges if the ineligible person has a private practice outside organized sport, and working with athletes is the livelihood of that person.

Theme 5: Smart testing and analyzing
As I mentioned above (see Theme 3) ‘Intelligence & Investigations’ will probably have a significant positive impact on the effectiveness of doping control programs. However, it remains to be seen whether this effectiveness will show in terms of the detection of more anti-doping rule violations, or in a better deterrence. Whichever it will be, a consequence of the development towards more targeted and tailor-made testing and analyzing, is that the price of testing will go up. Tailor-made testing means more individual testing, on odd hours, in (sometimes) strange places. This is – no surprise – considerably more expensive than testing a number of players at random after a training session of a team.

On top of that, the Technical Document for Sport Specific Analysis (TDSSA, https://wada-main-prod.s3.amazonaws.com/resources/files/wada-tdssa-v2.2-en.pdf) that has been developed after the implementation of the revised Code (based on Article 6.4 of that Code), prescribes a minimum percentage of additional analyses per sport discipline, with even more cost increase as a consequence. Some NADOs have managed to get additional funding in relation to these new requirements, but most of us have not (and not many of us foresee a budget increase in the near future). So the global number of tests performed by NADOs will in all likelihood decrease.

Whether this decrease in numbers will be acceptable, depends on the value added by the additional analyses that are now performed. If less tests bring more proof, then it is a good development. However, for the time being, there is no way to tell. And it is predictable that decreasing numbers of tests (the number of tests performed being the most commonly used measuring stick to assess the performance of a NADO) will generate critical questions about how serious we take the fight against doping in sport.

While I am writing this contribution, we are in the middle of the ‘IAAF controversy’, following the leakage of confidential information to the media, and the subsequent publication of sensitive data. I am not in the position to comment on what exactly is right and wrong in this case (I simply do not know) but I do know that the IAAF anti-doping program is ‘smarter’ than most, and that it can show results that few IFs can. Nonetheless, the public discussion is focusing on what has not been accomplished with all these data. So the large amounts of data that become available through ‘smart’ testing and elaborate biological passport programs, may become a burden instead of a blessing if the burden of proof is not reached in too many cases. Which – I fear – may be the case.

Theme 6: International Federations and NADOs
Another development that is not initiated by the Code revision – but certainly is supported and accelerated by it – is the improvement of NADO-IF cooperation. The revised Code clarifies and solves several of the problems that we have experienced with the 2009 Code. Examples are the control of therapeutic use exemptions (Article 4.4), the testing authority during international events (Articles 5.3, 5.2.6 and 7.1.1), and the coordination of whereabouts failures (Article 7.1.2). All these changes are improvements.

However, cooperation is more in the soul than it is in the rules, and we must acknowledge and accept that there are relevant differences between NADOs on the one hand and IFs on the other hand, in terms of culture, position and tradition. WADA has created Ad Hoc Working Groups of NADOs and IFs separately, and these groups have made inventories of existing problems that are subsequently brought to the table in joint meetings. The Articles in the Revised Code that underline the need for better cooperation will have no meaning if we stay separated in two worlds. But the impact will be huge, if and when we benefit from each other’s knowledge and experience. And although I am not an optimist by nature, I am pretty sure that this will work out fine.

Theme 7: A clearer and shorter Code
I think it is obvious that this Theme is quite ambitious, and I can only regretfully conclude that the revised Code is neither clearer, nor shorter than the 2009 version. The Code is the most important legal tool in the anti-doping world, and both lawyers and administrators may (and do) delight in the fact that the Code has proven to be an indispensable tool in our toolkit. It is, however, not a tool for athletes (except for those who are also lawyer or administrator) and it will never be. Clarity about the rules is delivered by the Education departments of NADOs, in the form of numerous publications, leaflets, manuals and (more and more) digital tools. And it is my personal opinion that there is not much wrong with accepting that the Code is not meant to educate athletes, but to protect them.

Miscellaneous
It is difficult to choose what other aspects of the revised Code are worth mentioning here. Let me name only a few.
The new possibility for an athlete to return to training during the last part of the period of ineligibility imposed on him (Art. 10.12.2), is – in my opinion – a balanced compromise between the need to fully execute sanctions, and the interests of team members that have not been sanctioned themselves. However, this refinement of the sanction regime further complicates the task that has been a burden for many NADOs for years already: how to monitor that sanctions are observed correctly and fully. This monitoring task usually cannot be fulfilled without the help of sport federations and clubs, and – to a certain extent – fellow athletes. Publicly known elite athletes will hardly have an opportunity to violate their sanction without being ‘caught’, but for lesser gods the situation is different, which fact collides with the Level playing field that we want to achieve.

Article 6.5 of the revised Code addresses the storing of samples for further analysis. It is good that these rules are now clarified, because it is to be expected that the percentage of samples that are stored for future analysis will rise over the years. The revised rules are meant to do justice to both the athlete and the (N)ADO and I think they actually do that, although I am sure that both NADOs and athletes will disagree in any particular case they are involved in.

The importance of the explicit wording of the Articles 20.4.3 and 22.6 that address the need for NADOs to be free from interference in our operational decisions, cannot be overestimated. Anti-doping issues can get a lot of attention in the media, and that may or may not lead to unleashing certain political powers. In my country, parliamentary questions have been asked about specific doping cases on several occasions. Thankfully, in no case this has led to actual interference in our work, but it is very good that the Revised Code is there to ward off such interference in countries where this may be necessary.

This is part two of the blog on the Willem II and MVV State Aid decisions. Where part one served as an introduction on the two cases, part two will analyze the compatibility assessment made by the Commission in two decisions.

The compatibility of the aid to MVV and Willem II (re-)assessed

Even though it was the Netherlands’ task to invoke possible grounds of compatibility and to demonstrate that the conditions for such compatibility were met, the aid granted to both Willem II and MVV was never notified. The Netherland’s failure to fulfill its notification obligation, therefore, appears to be at odds with the Commission’s final decision to declare the aid compatible with EU law. Yet, a closer look at the Commission’s decision of 6 March 2013 to launch the formal investigation shows that the Commission was giving the Netherlands a ‘second chance’ to invoke grounds that would lead to a justification of the measures. In paragraph 74, the Commission itself reached the conclusions that the clubs in question faced financial difficulties, consequently indicating that the Rescue and Restructuring Guidelines might apply. In fact, the Commission even suggested possible compensatory measures, which are very much related to “the peculiar nature of professional football”[1]. These suggested compensatory measures included:

- limiting the club’s number of registered players for a season or several seasons;

- accepting a cap on the relation between salaries and turnover;

- banning the payment of transfer fees for a certain period;

- offering additional expenditure on “pro bono” activities to the benefit of the community and training of amateurs.[2]

Furthermore, it invited the Dutch authorities “to provide all useful information allowing the Commission to decide whether the aid measures can be considered compatible with the Guidelines”.[3]

The observations and information submitted by the Netherlands between March 2013 and July 2016 proved more than sufficient for the Commission to carry out its compatibility assessment. As was insinuated in the decision to launch a formal investigation, the Rescue and Restructuring Guidelines proved fundamental to this assessment.  

Willem II and MVV as firms in financial difficulties

This first condition of the Guidelines was easily complied with. As regards Willem II, in the accounting year 2008/2009, it made a loss of €3.9 million on a turnover of €11.4 million. Meanwhile, its own equity decreased from €4.1 million to €200.000. The losses increased to €4.4 million on a turnover of €9.9 million for the 2009/2010 season, while its own equity decreased further from €200.000 to minus €2.1 million.[4]

MVV clearly was financially not doing much better. As the Commission itself summarizes in the MVV decision, “in 2008/2009, MVV made a loss of €1.1 million and its own equity was minus €3.8 million. By March 2010 additional losses amounting to €1.3 million had occurred and the own equity had dropped to minus €5.17 million. In April 2010, MVV was no longer able to pay salaries and other current expenditure and was on the brink of bankruptcy.”[5]

Another consequence of being in financial difficulties relates to the licensing system put in place by the Dutch football federation KNVB. As is explained in paragraph 11 of the decision to open a formal investigation, one of the obligations for clubs under the current system is submitting three financial reports a year to the KNVB. On the basis of these reports clubs are scaled in three categories (I: insufficient, II: sufficient, III: good). Clubs in category I may be obliged to present a plan for improvement in order to reach categories II or III. If the club fails to comply with the plan, sanctions may be imposed by the KNVB, including an official warning, a reduction of competition points and – as ultimate sanction – withdrawal of the licence.[6] At the time the State aid was granted, both Willem II and MVV were scaled in the insufficient category I.  

Willem II and MVV as small enterprises or medium-sized enterprises

This particular assessment is important for the two conditions below, i.e. the introduction of restructuring plans and compensatory measures. Depending on the size of the firm (or enterprise), different conditions apply. Willem II employed 53 people in 2012 and had an annual turnover of €11.4 million in 2008/2009.[7] Pursuant to the Annex of the Commission Recommendation concerning the definition of micro, small and medium-sized enterprises, Willem II just managed to be considered a medium-sized enterprise.[8]

MVV, on the other hand, is considered a small enterprise. In the season 2009/2010 it had 38 employees and in the season 2010/2011 it had 35 employees. Its turnover and balance sheet total remained well below €10 million in both years.[9] 

Restructuring plans

Though not initially communicated to the Commission, both rescue measures were subject to certain restructuring conditions. In principle, these consisted of reducing personnel costs, by introducing new managements, selling players, and signing players free of transfer payments. In the case of Willem II, in the two years following the rescue measure personnel costs were reduced by 30%.[10] The effects of MVV’s restructuring plan were even better, since it managed to book profits for the three seasons following the aid and was scaled in the highest category (III) by the KNVB in the beginning of the season 2011/2012.[11] 

Compensatory measures

For the compensatory measures it is important to take into account point 41 of the Rescue and Restructuring Guidelines. Under this provision, small enterprises, such as MVV, are not required to take compensatory measures. However, this exception did not apply to Willem II. The Commission noted more expenditure of Willem II for public benefit by the training of amateurs and a reduction of the number of registered players from 31 to 27. Similarly, no transfer payments were made during the restructuring period.[12] Potentially as a result of this, Willem II was relegated to the second league in 2011 and again in 2013. In the end, the Commission concluded that “the compensatory measures required by the Guidelines were taken, which had the effect of weakening Willem II's competitive position in professional football”.[13] 

Aid limited to a minimum

Since the aid measures rescued both football clubs from bankruptcy without creating equity surplus, the Commission believed the amount of aid granted limited to what was necessary. Furthermore, the Commission highlighted that the restructuring plans were to a large extent financed by external contributors just as the Rescue and Restructuring Guidelines requested. Private entities had agreed to lend €2.25 million to Willem II for the restructuring, which is well over the 40% of €2.4 million (the total amount of State aid granted) required for medium-sized enterprises under the Guidelines.[14] In the case of MVV, several private creditors decided to waive (part of) their debt, which amounted to €2.25 million. This amount is more than 25% of the €5.8 million granted by the Netherlands, the minimum requirement for a small enterprise like MVV.[15] 

One time, last time

The Commission believes this condition to be fulfilled, as the Netherlands specified that Willem II and MVV did not receive rescue or restructuring aid in the ten years before the aid measures, nor will it award any new rescue or restructuring aid to the clubs during a period of ten years.[16] 

Conclusion

At the time of writing, the non-confidential versions of the positive decisions regarding State aid granted in favour of the Dutch professional football clubs FC Den Bosch and NEC Nijmegen are not published. Nonetheless, this does not prevent us from drawing the following lessons from the Willem II and MVV decisions.

First of all, these decisions show that there is no need to draft sector specific guidelines for State aid to professional football clubs in difficulty. The Rescue and Restructuring Guidelines are all the Commission needs in order to carry out the compatibility assessment. This approach is radically different when compared to the Commission’s decisional practice for the State aid to sport infrastructure cases between 2011 and 2013.[17] Only after the Commission dealt with ten different cases, was its approach (to a large extent) codified in Article 55 of the 2014 General Block Exemption Regulation.[18]

In this regard it is important to highlight that the Commission seems to take into account “the peculiar nature of professional football”[19] when assessing the compatibility of State aid measures under the Rescue and Restructuring Guidelines. For example, it showed demonstrated its awareness of the UEFA Club Licensing and Financial Fair Play Regulations[20] as well as national (KNVB) licensing rules when assessing the compensatory measures taken by Willem II. Moreover, it clearly endorsed the decision taken by the club not to make transfer payments during the restructuring period, since this prevents the club from spending money it might not have, while simultaneously limiting the club’s competitiveness on the field.

A further lesson that can be drawn from these decisions is that, in my opinion, the threshold to ‘pass the compatibility test’ under the Rescue and Restructuring Guidelines is quite low. With regard to the condition that the club needs to be in financial difficulties in order to get the State aid, it is clear that granting State aid to professional football clubs in financial difficulties is one of the most (if not the most) common form of State aid in the sector. This was the case for the five Dutch clubs scrutinized by the Commission, as well as the three clubs from Valencia of which the non-confidential version of the decision still needs to be published. Other clubs like FC Twente and Sporting de Gijón have also received State aid over financial difficulties, even though the Commission did not investigate these measures (yet).[21] In other words, a majority of the cases are assessable under these Guidelines.

The condition that the beneficiary football club needs to stick to a restructuring plan in order to receive the State aid is key. As is elucidated in the two decisions, the restructuring plans consisted of selling players, reducing the costs of wages and not paying transfer fees for new players for a period of three years. In my view, these conditions are rather proportionate when considering that the clubs in question were on the verge of bankruptcy prior to the State aid measures. In fact, one could argue that FIFA’s transfer ban imposed on FC Barcelona for international transfers of minors, or excluding FC Dynamo from the next UEFA club competition for which the club would otherwise qualify in four seasons (i.e. the 2015/16, 2016/17, 2017/18 and 2018/19 seasons) for breaching UEFA’s FFP Regulations,[22] are harsher than the restructuring conditions accepted by the Commission.

The same can be said about the need to take compensatory measures. The measures taken by Willem II (reducing the number of employees and players, and reducing the cost of wages to 48% of the turnover) could be considered a direct consequence of the abovementioned restructuring plans. The only additional compensatory measure taken by Willem II was increasing expenditure of the club for the training of amateurs, though the decision does not specify what this implied in practice.

Perhaps the only condition that could be problematic for some football clubs is the “one time, last time” criterion. Under this condition, the public authorities cannot rescue Willem II and MVV again until at least 2020. Although Willem II and MVV are currently in category III and II on the KNVB’s scale respectively, falling back to category I before 2020 could have dramatic consequences.

Be that as it may, now that the Commission’s approach for the assessment of State aid to professional football clubs in financial difficulties is out in the open, public authorities and football clubs alike should use this knowledge to their own advantage. They should remember that the Commission is willing to accept rescue aid and that the restructuring conditions are far from impossible to match. One can even wonder whether a club like FC Twente would have turned to Doyen when it was facing financial difficulties, if it had been aware of the conditions imposed by the European Commission for receiving compatible State aid under the Rescue and Restructuring Guidelines.

[1] Commission Decision on State Aid SA.40168 of 4 July 2016 implemented by the Netherlands in favour of the professional football club Willem II in Tilburg, para. 50.

[2] Commission Decision SA.33584 of 6 March 2013 – The Netherlands Alleged municipal aid to the Professional Dutch football clubs Vitesse, NEC, Willem II, MVV, PSV and FC Den Bosch in 2008-2011, para. 80.

[3] Ibid, para. 77.

[4] SA.40168, para. 45.

[5] Commission Decision on State Aid SA.41612 of 4 July 2016 implemented by the Netherlands in favour of the professional football club MVV in Maastricht, para. 13.

[6] SA.33584, para. 11.

[7] SA.40168, para. 9.

[8] A firm is not considered a small enterprise i fit has more than 50 employees and an annual turnover of more than €10 million. See footnote 27.

[9] SA.41612, para. 9.

[10] SA.40168, para. 48.

[11] SA.41612, para. 52.

[12] SA.40168, para. 51. Indeed, according to www.transfermarkt.de, Willem II only paid a mere €20.000 for the signing of Kevin Brands in July 2012.

[13] Ibid.

[14] SA.40168, para. 52.

[15] SA.41612, para. 54.

[16] SA.40168, para. 55 and SA.41612, para. 61.

[17] Commission Decision of 9 November 2011, SA.31722 – Hungary - Supporting the Hungarian sport sector via tax benefit scheme; Commission Decision of 2 May 2013, SA.33618 Uppsala arena; Commission Decision of 15 May 2013, SA.33728 Multiarena in Copenhagen; Commission Decision of 20 March 2013, SA.35135 Multifunktionsarena der Stadt Erfurt; Commission Decision of 20 March 2013, SA.35440 Multifunktionsarena der Stadt Jena; Commission Decision of 18 December 2013, SA.35501 Financement de la construction et de la renovation des stades pour l’EURO 2016; Commission Decision of 2 October 2013, SA.36105 Fuβballstadion Chemnitz; Commission Decision of 20 November 2013, SA.37109 Football stadiums in Flanders; Commission Decision of 9 April 2014, SA.37342 Regional Stadia Development in Northern Ireland; and Commission Decision of 13 December 2013, SA.37373 Contribution to the renovation of ice arena Thialf in Heerenveen.

[18] For a deeper analysis of whether sport-specific guidelines are necessary, see Oskar van Maren, “EU State Aid Law and Professional Football: A threat or a Blessing?”, European State Aid Law Quarterly, Volume 15 1/2016, pages 31-46. To find out how sector-specific rules for State aid are usually articulated, see Ben Van Rompuy and Oskar van Maren, “EU Control of State Aid to Professional Sport: Why Now?” In: “The Legacy of Bosman. Revisiting the relationship between EU law and sport”, T.M.C. Asser Press, 2016.

[19] SA.40168, para. 50.

[20] In paragraph 51 of SA.40168, the Commission referred to a UEFA rule, which holds that the cost of salaries should not exceed 70%.

[21] For more information of the precarious financial situation of these two clubs, see our previous blogs: “Unpacking Doyen’s TPO Deals: FC Twente's Game of Maltese Roulette”, and “TPO and Spanish football, friends with(out) benefits?”.

[22] For more information on the FC Dynamo case, see our blog “UEFA’s FFP out in the open: The Dynamo Moscow Case”.

Editor’s Note: Etienne Gard graduated from the University of Zurich and from King's College London. He currently manages a project in the field of digitalization with Bratschi Ltd., a major Swiss law firm where he did his traineeship with a focus in international commercial arbitration.

1. Prelude

On the 10^th of June, 1958, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, widely known as the “New York Convention”, was signed in New York by 10 countries.[1] This rather shy figure progressively grew over the decades to now reach 157 signatory countries, turning the New York Convention into the global recognition and enforcement instrument it is today. As V.V. Veeder’s puts it, “One English law lord is said to have said, extra judicially, that the New York Convention is both the Best Thing since sliced bread and also whatever was the Best Thing before sliced bread replaced it as the Best Thing.”[2]

However, among the overall appraisal regarding the New York Convention, some criticisms have been expressed. For instance, some states use their public policy rather as a pretext not to enforce an award than an actual ground for refusal.[3]  A further issue is the recurring bias in favor of local companies.[4] Additionally, recognition and enforcement procedures in application of the New York Convention take place in front of State authorities, for the most part in front of courts of law, according to national proceeding rules. This usually leads to the retaining of a local law firm, the translation of several documents, written submissions and one, if not several hearings. Hence, the efficiency of the New York Convention as a recognition and enforcement mechanism comes to the expense of both money and time of both parties of the arbitral procedure.

In contrast with the field of commercial arbitration, where the New York Convention is often considered the only viable option in order to enforce an award, international football organizations, together with the Court of Arbitration for Sport (“CAS”), offer an effective enforcement alternative. This article aims at outlining the main features of the indirect enforcement of CAS awards in football matters in light of a recent case.

2.  Facts of the Case

The dispute at hand involved a football club affiliated with the United Arab Emirates Football Association (“UAEFA”) and a player’s agent. The club at hand owed a commission to the agent following the completion of a player’s transfer. The agent ultimately won the case before the CAS and the latter awarded him monetary compensation against the football club.

Shortly thereafter, means of enforcement against the club were sought.

It is widely recognized that the awards rendered by the CAS do qualify as awards under the New York Convention and may thus be subject to the classic enforcement provided therein.[5]

Whilst this is to be welcomed because it offers alternatives to the prevailing party seeking recognition and enforcement of the arbitral award, the following will show that another route exists, which may prove just as effective whilst saving both time and money.

Indeed, though the United Arab Emirates did ratify the New York Convention, the general critics mentioned above also applied in the case at hand. This meant that going down the route of direct enforcement against the UAE-based football club would have had several drawbacks. First, the translation workload in order to comply with the local procedural rules was significant. Second, since the recognition procedure was due to take place in front of national courts, a local law firm would have had to be retained. Finally, there was no clear timeline as to when exactly the due compensation would effectively be paid.

3. The Indirect Enforcement

Luckily, the world of football organizations provides for an alternative path, which proved to be highly effective at hand. Indeed, as a result of the deep-rooted integration of CAS and of its decisions in effectively all organizational layers of national and international football, the New York Convention is not the only global enforcement mechanism available to a prevailing party in that field. Although it requires to take steps outside that Convention and, as a result, of the entire ‘state-supported’ enforcement system, the indirect enforcement described below nonetheless proves to be a viable alternative for parties involved in football-related arbitration.

3.1 The Statutory Basis of Indirect Enforcement

It all starts with art. 15 para. 1 let. f of the FIFA Statutes which stipulates that the statutes of the member associations shall ensure that, inter alia, all relevant stakeholders must agree to recognize the jurisdiction and authority of CAS.[6] Art. 23 para. 1 let. f provides for a similar obligation with regard to the confederations’ statutes.[7]

Pursuant to art. 61 para. 1 of the Statutes of the Asian Football Confederation (“AFC”), to which the UAEFA is a member, the AFC recognizes the CAS to resolve disputes between, inter alia, clubs and intermediaries.[8] Further, according to art. 62 para. 1 of said Statutes, the member associations, among which the UAEFA, shall agree to recognize CAS as an independent judicial authority and to ensure that their members and clubs comply with the decisions passed by CAS. Any violation of these provisions will trigger a sanction on the breaching party, according to art. 62 para. 3 of the AFC Statutes.

Finally, art. 19 para. 4 of the UAEFA Statutes provides that each club, upon application for affiliation, shall provide a declaration whereas it undertakes to accept and implement the decisions rendered by the CAS.[9]

In light of the above, the rules of football organizations put in place a terraced indirect enforcement mechanism regarding CAS awards, whereas each club undertakes to comply with such awards vis-à-vis its home association, each such association being in turn similarly obligated vis-à-vis FIFA and its own Confederation. The latter finally has the duty to ensure that its affiliated associations recognize the authority of CAS, thereby closing the loop.

The broad sanction mechanism at every stage leaves considerable discretionary powers to the competent bodies in order to appropriately pressure the breaching stakeholder, on whichever link in the chain the latter may be, into complying with CAS decisions.

3.2 The Indirect Enforcement Procedure

The FIFA Statutes do not provide for any particular body directly tasked with the enforcement of CAS awards against FIFA’s affiliates and their stakeholders. Nor is there any particular procedure enshrined in the FIFA Statues as to how the indirect enforcement of CAS awards shall take place. In particular, art. 64 FIFA Disciplinary Code only applies to CAS decisions in appeal arbitration proceedings regarding the decisions of FIFA and not to CAS decisions rendered in an ordinary arbitration procedure.[10]

However, art. 45 of the FIFA Statutes does provide that the Member Associations Committee shall deal with relations between FIFA and its member associations as well as the member associations’ compliance with the FIFA Statutes. The same is true at the level of the AFC, whereas art. 54 of its Statutes provide that the Associations Committee shall be responsible for relations between the AFC and its Member Associations as well as Member Association’s compliance with FIFA and AFC Statutes and Regulations.

In other words, both at FIFA and AFC level, a standing committee is responsible for ensuring that the Members comply with the applicable statutes and thus, inter alia, with awards rendered by CAS.

Based on the above, we concluded that in order for the competent FIFA and AFC standing committees to examine the case of a club not complying with a CAS award, they needed to be first convinced that (i) a final and binding CAS award had been rendered against a club affiliated with a member association and that (ii) such club refused to comply with said award. Second, the above-mentioned committees would need to be shown that the national football association has been notified of such occurrence and been asked to take appropriate actions against the club according to its own statutes.

From this point in time onwards, the FIFA and AFC standing committees will have been notified that a member’s association has been asked to remedy a matter of non-compliance of an affiliated club with a CAS award and thus such association is now under a statutory obligation to ensure compliance from the club, as described above, or else may itself be found to have breached the FIFA and/or AFC Statutes and sanctioned accordingly.

4. Epilogue and Conclusion

Shifting the focus back to the case that prompted the idea of this blog, once the route leading to indirect enforcement was mapped, we proceeded with gathering the evidence needed, i.e. that the CAS award was final and binding upon the football club.

Section 193 of the Swiss Private International Law Act – which applies to international CAS proceedings – enables the parties to request an enforceability certificate from the competent state court regarding an award rendered by an international arbitral tribunal with its seat in Switzerland. This document certifies that the award in question is final and that no appeal can be filed against it. In the case of the CAS, the state court competent for the issuance of an enforceability certificate is the Tribunal cantonal, in Lausanne.

Once this certificate was obtained, we filed it together with a copy of the award to the competent national association, the UAEFA, urging the latter in writing to request from the club that it complied with the CAS award, or else the club would be sanctioned. Both the competent standing committees of the FIFA and of the AFC received a copy of that letter.

From this moment onwards, the machinery of the indirect enforcement mechanism was switched on and we knew that leverage existed at every level, up until FIFA, to ensure that each stakeholder, be it the UAEFA or the AFC, pressures its affiliated bodies, and, ultimately, the club, into complying with the CAS award.

In the case at hand, this method proved to be successful. Indeed, as a result of the aforementioned steps, the AFC promptly contacted the UAEFA, requesting this matter to be solved and the football agent received the awarded compensation from the club within a few weeks after the UAEFA, the AFC and the FIFA were notified as described above.

This case shows how operating outside the New York Convention can prove both cost- and time-effective. When used properly, the indirect sanction mechanism put in place by football organizations proves to be a proper alternative to classic enforcement proceedings and shall in any event be considered as a viable option under similar circumstances.

[1] Flannery/Merkin, Arbitration Act 1996, 5th Ed., Oxon, 2014, p. 356.

[2] V.V. Veeder, Is There a Need to Revise the New York Convention - Key note speech, in: ‘The Review of International Arbitration Awards – IAI Forum’, International Arbitration Institute, 2008, p. 183 et sqq., p. 186.

[3] V.V. Veeder, p. 191.

[4] Gaillard, ‘The Urgency of Not Revising the New York Convention’, in: The New York Convention at 50, 2008, p. 689 et seqq., p. 690.

[5] Nafziger/Ross, Handbook on International Sports Law, Edward Elgar 2011, p. 40; Rubno-Sammartano, International Arbitration Law and Practice, 3^rd Ed., JurisNet, 2014, p.1709; Nolon, Arbitration and the Olympic Athlete, in: McCann, ‘The Oxford Handbook of American Sports Law’, OUP 2017, p. 444.

[6]Art. 15 para. 1 let. f of the FIFA statutes reads as follows: “Member associations’ statutes must comply with the principles of good governance, and shall in particular contain, at a minimum, provisions relating to the following matters: […] all relevant stakeholders must agree to recognise the jurisdiction and authority of CAS and give priority to arbitration as a means of dispute resolution […].

[7] Art. 23 para. 1 let. f of the FIFA statutes reads as follows: “The confederations’ statutes must comply with the principles of good

governance, and shall in particular contain, at a minimum, provisions relating to the following matters

[8] Art. 61 para 1 of the Asian Football Confederation Statutes reads as follows: “The AFC recognises the independent Court of Arbitration for Sport (CAS) with headquarters in Lausanne (Switzerland) to resolve disputes between the AFC and the other Confederations, Member Associations, Leagues, Clubs, Players, Officials, Intermediaries and licensed match agents.”

[9] Art 19 para 4 of the UAEFA Statutes reads as follows (tentative translation): “Each applicant should provide the following documents: […] A declaration that it will to accept and implement the resolutions and decisions issued by the Court of Arbitration for sport in Lausanne (CAS).”

[10] Art. 64  para 1 of the FIFA Disciplinary Code  reads as follows (emphasis added): “Anyone who fails 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 or an instance of FIFA or a subsequent CAS appeal decision (financial decision), or anyone who fails to comply with another decision (nonfinancial decision) passed by a body, a committee or an instance of FIFA, or by CAS (subsequent appeal decision): […].”