Editor's note: Björn Hessert is a research assistant at the University of Zurich and a lawyer admitted to the German bar.

The discussion revolving around the invalidity of arbitration clauses in organised sport in favour of national and international sports arbitral tribunals has been at the centre of the discussion in German courtrooms.[1] After the decisions of the German Federal Tribunal[2] (“BGH”) and the European Court of Human Rights[3] (“ECtHR”) in the infamous Pechstein case, this discussion seemed to have finally come to an end. Well…not according to the District Court (LG) of Frankfurt.[4] On 7 October 2020, the District Court rendered a press release in which the court confirmed its jurisdiction due to the invalidity of the arbitration clause contained in the contracts between two beach volleyball players and the German Volleyball Federation[5] (“DVV”) – but one step at a time.

1.     Arbitration clauses in organised sport

Over the past few decades, the Olympic movement has created its own judicial system in its endeavour to create and maintain a uniform judicial level playing field outside national courts. This is important, because athletes participating in international sports competitions need to be subject to the same sanctioning regime in the light of fairness and equality in sport.[6] In this regard, the jurisdiction of national courts threatens the uniform application of rules and regulations of international sports federations insofar as they could apply them differently. This could lead to the unsatisfying result that, for example, an athlete from Germany is punished for an anti-doping rule violation with a 2-year ineligibility sanction while a Swedish athlete is subject to a lifetime ban for the same misconduct.

In order to preserve the uniform application of sporting rules and – ultimately – a legal level playing field, the rules and regulations of the respective sports federation or individual contracts, including employment contracts or athlete agreements and licence agreements (“entry forms”), generally contain arbitration clauses in favour of private sports arbitral tribunals, e.g. the Court of Arbitration for Sport (“CAS”). As a result, the arbitration agreement between the parties to membership contracts or entry forms ousts the jurisdiction of national courts.[7] Due to the fact that athletes are not generally direct members of national and international sports federations, contractual clauses in their employment contracts or entry forms make reference to arbitration clauses set out in the rules and regulations of said sports federations. For example, international football players are generally bound by the regulations of the Fédération Internationale the Football Association (“FIFA”), including its statutes. Article 58(1) of the FIFA Statutes (2020 edition) provides that “[a]ppeals against final decisions passed by FIFA’s legal bodies against decisions passed by confederations, member associations or leagues shall be lodged with CAS […]”. References in individual contracts of sportspersons contained in the rules and regulations of sports federations, so-called “arbitration agreements by reference”, have been considered to be valid. In this respect, the Swiss Federal Tribunal (“SFT”) held that

“in sporting matters the Swiss Federal Tribunal examines arbitration agreements between parties with a certain goodwill in order to promote the fast resolution of disputes by specialised courts, which as the CAS, offer comprehensive guarantees of independence and neutrality.”[8]

Athletes are generally forced to accept such arbitration agreements in favour of sports arbitral tribunals due to the monopolistic structure in organised sport, meaning that only one national and international sports federation governs each sport on the basis of the pyramidal European Model of Sport (so-called Ein-Platz-Prinzip).[9] In other words, athletes can only choose between accepting such arbitration agreements (by reference) or renouncing their calling as professional athletes.[10] Against this background, it appears to be questionable whether mandatory arbitration agreements in organised sport concluded between monopolistic sports federations and athletes are valid, taking into account that arbitration as a mechanism of alternative dispute resolution generally finds its basis in the free and voluntary will of the parties to the dispute concerned. The validity of mandatory arbitration agreements was at the heart of the Pechstein[11] case and has now been addressed in the recent decision rendered by the District Court of Frankfurt[12].

2.     The decisions of the BGH and the ECtHR in the Pechstein case

Claudia Pechstein is a professional speed-skater. Prior to the speed-skating world championships, organised by the International Skating Union (“ISU”), she signed an entry form, including an arbitration agreement in favour of the CAS.[13] During her proceedings before German courts and the ECtHR, Pechstein argued that the arbitration agreement concluded between her and the ISU had not been accepted freely and voluntarily, because otherwise she would not have been eligible to participate in professional speed-skating competitions.

After the Higher Regional Court (OLG) of Munich had decided that the arbitration agreement signed by Ms Pechstein was invalid under German competition law as a result of ISU’s abuse of a dominant position[14], the BGH overruled this decision.[15] In the view of the BGH, the ISU is a monopoly within the meaning of sec. 19(1) of the German Competition Act (“GWB”).[16] However, the BGH took the view that the dominant position of a party to the arbitration agreement does not automatically revoke the voluntary nature of the consent to an arbitration agreement in favour of private sports arbitral tribunals.[17] Instead, the examination of the validity of the arbitration agreement is subject to a balancing process in consideration of the interests of both parties, i.e. sports federations and individual athletes.[18] In consideration of the legal protection of athletes and the specificity of sport, particularly in ensuring fair competitions and uniform case law in organised sport, which “would be seriously jeopardised”[19] by the invalidity of the arbitration agreement, the court came to the conclusion that the interests of the ISU prevail in this regard.[20] The CAS is a genuine arbitration court and guarantees legal protections for athletes equivalent to national courts.[21] Furthermore, the consistent application of the rules and regulations of sports federations by a specialised arbitration institution is not only in the interest of sports federations, but also in the interest of athletes.[22] 

The ECtHR indirectly confirmed the validity of the arbitration agreement concluded between Ms Pechstein and the ISU. However, in determining the free will of athletes when entering into an arbitration agreement with a monopolistic sports federation, the court held that the arbitration clause is generally not based on the free consent of the athlete and thus has a forced nature.[23] In case the athlete is compelled to accept an arbitration agreement, Article 6(1) of the ECHR is applicable to the sports arbitration proceedings in protection of the procedural rights of the athlete.[24]  

However, arbitration agreements in organised sport are not compulsory per se if the applicable sports rules and regulations leave it to the sports federation and the athlete to freely and voluntarily agree on an arbitration agreement. In this case, athletes are not in the same predicament and may therefore choose between different clubs before signing an arbitration agreement.[25]Furthermore, the complaining athlete must provide evidence that “other professional football clubs, which perhaps have more modest financial means, would have refused to hire him on the basis of a contract providing for dispute settlement in ordinary courts.”[26]

According to the BGH, the validity of arbitration agreements in organised sport is subject to a balancing process between the competing interests of the parties to it. However, if an athlete was compelled to accept arbitration clauses of monopolistic sports federations, the ECtHR concluded that Article 6(1) of the ECHR is applicable to the arbitration proceedings concerned. Both courts therefore set the benchmark against which the validity of arbitration agreements and proceedings in organised sport is measured. 

3.     Decision of the District Court of Frankfurt (based on the press release)

The decision of the District Court of Frankfurt is insofar remarkable as the court was in the position to consider both the decision of the BGH and the ECtHR in its decision-making process. With regard to the validity of the arbitration agreement concluded between two volleyball players and the DVV, the court stated in its press release of 7 October 2020[27] as follows:

“Die Streitigkeit habe nicht vorrangig vor einem Schiedsgericht ausgetragen werden müssen. Zwar enthielten die Verträge der Klägerinnen mit dem Beklagten jeweils eine Schiedsvereinbarung. Dieser sei aber unwirksam, «weil die Klägerin sich ihr nicht freiwillig unterworfen habe», so die Richter. Seit der Entscheidung des Europäischen Gerichtshofs für Menschenrechte (EGMR) im Fall Pechstein sei bei professionellen Leistungssportlern von einer unfreiwilligen Unterwerfung unter einer Schiedsgerichtsbarkeit auszugehen, wenn die Profisportler «vor der Wahl stehen, eine Schiedsklausel anzunehmen, um durch die Ausübung ihres Sports ihren Lebensunterhalt bestreiten zu können, oder sie nicht zu akzeptieren und damit vollständig auf ihren Lebensunterhalt durch Ausübung des Sports zu verzichten.» Es sei nicht belegt, dass die Klägerinnen seinerzeit tatsächlich die Wahl hatten, die Schiedsklauseln abzuschliessen oder nicht. Deswegen sei von einer Unfreiwilligkeit auch dann auszugehen, wenn die Volleyballerinnen die Klauseln kritiklos unterzeichnet hätten.”

[free translation: The dispute did not have to be settled primarily before an arbitration tribunal. It is true that the plaintiffs' contracts with the defendant each contained an arbitration agreement. However, this was invalid ‘because the plaintiff did not voluntarily submit to it’, the judges said. Since the decision of the European Court of Human Rights (ECtHR) in the Pechstein case, professional athletes must be presumed to have involuntarily submitted to arbitration if the professional athletes ‘are faced with the choice of accepting an arbitration clause in order to be able to earn their living by practising their sport or not accepting it and thus refrain completely from earning a living from their sport’. There is no evidence that the plaintiffs at the material time actually had the choice of whether or not to accept the arbitration clauses. Therefore, it can be assumed that the arbitration was involuntary even if the volleyball players had signed the clauses without criticism/objection.]

Based on the wording of the press release – and in absence of the full judgement – it appears that the court sided with the findings of the ECtHR insofar as it qualified the arbitration agreement contained in entry forms of athletes as mandatory in nature.

Furthermore, it can only be speculated why the court stated in its press release that the athletes had not objected to the signing of an arbitration clause. The court may have considered that the volleyball players were in a similar position than Ms Pechstein. This approach would be consequent, because beach volleyball players, like the plaintiffs in the proceedings before the District Court Frankfurt, are generally faced with the same dilemma as Ms Pechstein was. They cannot choose between different national federations for the sport of volleyball. In this case, it is not necessary for the athletes to show that they could not conclude a contract with the DVV without an arbitration agreement in favour of a sports arbitral tribunal.

Be it as it may, it is – with the BGH decision in the Pechstein case in mind – difficult to understand how the District Court of Frankfurt came to the conclusion that the arbitration agreement between the beach volleyball players and the DVV is invalid. It appears that the court deduces this invalidity from the compulsory nature of arbitration clauses in organised sport, as highlighted by the ECtHR. This would contradict the BGH’s view that forced arbitration can be justified in the sporting context and that the validity of particular clause must be determined on the basis of a balancing process.[28] If the District Court of Frankfurt applied such a balancing process between the competing interests of the parties to the dispute, it will be interesting to see why the court arrived at the conclusion that the arbitration agreement is invalid. In light of the above, the specificity of sport, particularly the consistent and uniform application of rules and regulations of sports federations, is a strong argument in favour of forced arbitration. Indeed, the legal level playing field and ultimately the sporting level playing field would be jeopardised if national courts would decide on sporting cases instead of national sports arbitral tribunals, such as the German Court of Arbitration for Sport (“DIS”) or the CAS. The interest of sports federations also prevails in domestic disputes. Otherwise, there is a risk that the national courts will interpret the sporting rules of a particular sports federation inconsistently.

On balance, it will be important to carefully analyse how the Frankfurt court substantiated its departure from the BGH decision in the Pechstein case. In my view, the press release indicates that the court was apparently unable to strike a fair balance between the competing interests involved, bearing in mind the specificities of sport.

[1] See e.g. District Court (LG) Cologne, decision of 13 September 2006, 28 O (Kart) 38/05; District Court (LG) Munich I, decision of 26 February 2014, 37 O 28331/12; Higher Regional Court (OLG) Munich, decision of 15 January 2015 – U 1110/14 Kart.

[2] BGH, decision of 7 June 2016, KZR 6/15; a translation of the decision is published on the CAS website.

[3] Mutu and Pechstein v Switzerland, ECtHR, Application no. 40575/10 and no. 67474/10, 2 October 2018.

[4] District Court Frankfurt, 7 October 2020, 2-06 O 457/19 (unpublished); press release available at https://ordentliche-gerichtsbarkeit.hessen.de/sites/ordentliche-gerichtsbarkeit.hessen.de/files/PM%207_10_2020%20Schadensersatz%20f%C3%BCr%20Profi-Volleyballerinnen_0.pdf.

[5] Press Release, District Court Frankfurt, 7 October 2020 available at https://ordentliche-gerichtsbarkeit.hessen.de/sites/ordentliche-gerichtsbarkeit.hessen.de/files/PM%207_10_2020%20Schadensersatz%20f%C3%BCr%20Profi-Volleyballerinnen_0.pdf.

[6] Mutu and Pechstein v Switzerland, ECtHR, Application no. 40575/10 and no. 67474/10, 2 October 2018, para. 98.

[7] Daniel Girsberger and Nathalie Voser, International Arbitration (3rd edn, Schulthess Juristische Medien AG, 2016) 4; see also Antoine Duval, ‘Not in my Name! Claudia Pechstein and the Post-Consensual Foundations of the Court of Arbitration for Sport’ Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No 2017-01.

[8] SFT, decision of 7 November 2011, 4A_246/2011, para. 2.2.2; see also SFT, decision of 28 May 2018, 4A_314/2017, para. 2.3.1; SFT, decision of 2 February 2018, 4A_490/2017, para. 3.1.2.

[9] Commission of the European Communities, ‘White Paper on Sport’, COM(2007) 391 final, 13. SFT, decision of 22 March 2007, 4P.172/2006, para. 4.3.2.2.; BGH, decision of 7 June 2016, KZR 6/15; Mutu and Pechstein v Switzerland, ECtHR, Application no. 40575/10 and no. 67474/10, 2 October 2018, para. 113.

[10] SFT, decision of 22 March 2007, 4P.172/2006, para. 4.3.2.2.; BGH, decision of 7 June 2016, KZR 6/15; Mutu and Pechstein v Switzerland, ECtHR, Application no. 40575/10 and no. 67474/10, 2 October 2018, para. 113.

[11] BGH, decision of 7 June 2016, KZR 6/15; Mutu and Pechstein v Switzerland, ECtHR, Application no. 40575/10 and no. 67474/10, 2 October 2018.

[12] District Court Frankfurt, 7 October 2020, 2-06 O 457/19 (unpublished)¸ ); press release available at https://ordentliche-gerichtsbarkeit.hessen.de/sites/ordentliche-gerichtsbarkeit.hessen.de/files/PM%207_10_2020%20Schadensersatz%20f%C3%BCr%20Profi-Volleyballerinnen_0.pdf.

[13] BGH, decision of 7 June 2016, KZR 6/15, para. 2.

[14] Higher Regional Court (OLG) Munich, decision of 15 January 2015 – U 1110/14 Kart.

[15] BGH, decision of 7 June 2016, KZR 6/15.

[16] Ibid, para. 9.

[17] Ibid, para. 54; Ulrich Haas, ‘The German Federal Court on Treacherous Ice- A final point in the Pechstein case’ in Christoph Müller, Sébastian Besson and Antonio Rigozzi (eds), New Development in International Commercial Arbitration 2016 (1^st edn, Schulthess Juristische Medien AG, 2016) 219, 256 et seq.

[18] Ibid, para. 55.

[19] Ibid, para. 50.

[20] Ibid, para. 59; Ulrich Haas, ‘The German Federal Court on Treacherous Ice- A final point in the Pechstein case’ in Christoph Müller, Sébastian Besson and Antonio Rigozzi (eds), New Development in International Commercial Arbitration 2016 (1^st edn, Schulthess Juristische Medien AG, 2016) 219, 263 et seq.

[21] Ibid, para. 62.

[22] Ibid.

[23] Mutu and Pechstein v Switzerland, ECtHR, Application no. 40575/10 and no. 67474/10, 2 October 2018, para. 113.

[24] Mutu and Pechstein v Switzerland, ECtHR, Application no. 40575/10 and no. 67474/10, 2 October 2018, para. 115.

[25] Ibid, para. 120.

[26] Ibid, para. 119.

[27] Press Release, District Court Frankfurt, 7 October 2020, 2.

[28] Ulrich Haas, ‘The German Federal Court on Treacherous Ice- A final point in the Pechstein case’ in Christoph Müller, Sébastian Besson and Antonio Rigozzi (eds), New Development in International Commercial Arbitration 2016 (1^st edn, Schulthess Juristische Medien AG, 2016) 219, 250.

Nearly twenty years after the European Court of Justice declared in the Bosman case that all professional athletes within the EU were given the right to a free transfer at the end of their contracts, the Spanish Tribunal Supremo[1] provided a judgment on 26 March 2014 that will heighten a new debate on the rights of professional athletes once their contract expires.

This case originates in a dispute between the Spanish Association of Professional Cycling Teams (Asociación de Equipos de Ciclismo Profesional) and the Spanish Association for Professional Cyclists (Asociación de Ciclistas Profesionales). The two parties had concluded a collective agreement for professional cycling in 2010. Even though it is common practice that cyclists would never sign employment contracts for an indefinite period of time, nor would cycling teams compensate their cyclists merely for contract expiration, article 15(2) of the agreement established that, at the end of the contract, the team is obliged to compensate the cyclist with the amount that is due to him based on the employment contract[2].

On 14 May 2012 the Association of Professional Cycling Teams, as applicant, requested from the Spanish Audiencia Nacional to pronounce itself on the correct interpretation of article 15.2 of the collective agreement, taking into account the Real Decreto 1006/1985 on the special employment relationship of professional athletes and article 49.1.c) of the Workers Statute (Disposición Transitoria Decimotercera del Estatuto de los Trabajadores). According to article 49.1.c) of the Workers Statute, after expiration of the contract, a worker shall have the right to receive a compensation of an amount equal to 12 days of salary for every year of service. One of the goals of this article was to promote indefinite contracts.

The applicant argued that, due to the nature of contracts of professional athletes, for which the duration is never indefinite, article 49.1.c) is not applicable to professional athletes. By contrast, article 6 of Real Decreto 1006/1985, which states that the duration of sporting contracts are always fix-term contracts, should be used for the interpretation of the collective agreement between the two cyclist associations.

In its judgment of 16 July 2012, the Social Chamber of la Audiencia Nacional[3] confirmed that professional athletes are not to be treated differently than regular employees, and should therefore be compensated at the end of their contract. However, the Audiencia Nacional recognized the specific nature of the employment contracts of professional athletes, whose employment conditions are specifically regulated in Real Decreto 1006/1985. Hence, it declared article 49.1.c) of the Workers Statute inapplicable to professional athletes.

The decision of the Audiencia Nacional being appealed, the Spanish Supreme Court was in turn confronted with the question whether a professional athlete is entitled to the compensation as stipulated in Article 49.1.c of the Workers Statute after expiration of the employment contract. In other words, are the general labour rules regarding the end of the employment contracts also applicable to professional athletes?

The Court answered this question affirmatively, seeing no reason whatsoever for the Workers Statute, including article 49.1.c) not to be equally applicable to professional athletes. Moreover, by applying the Workers Statute, the compensation will become an instrument for the promotion of contract extensions, thereby improving the employment stability of athletes. Lastly, and referring to point 6 of the preamble of Council Directive 1999/70/EC concerning the framework agreement on fixed-term work, the Court argued that indefinite contracts contribute to the quality of life of the affected workers[4], and is therefore in line with the original goals of article 49.1.c) of Workers Statute.

The consequences of this judgment are simple enough: A professional athlete who had a five year contract with a specific club or team for 100,000 Euros a year will, at the end of his contract, receive a compensation of approximately 16,438.36 Euros (100,000 / 365 x 12 x 5), or 16.4% of his yearly salary.

This ruling is an important step forward on the long and tangled road towards the full recognition of professional athletes as true workers deserving the same rights and duties as their peers.

[1] El Tribunal Supremo is the highest court in Spain for all matters not relating to the Spanish Constitution

[2] Article 15(2) …Al finalizar la relación laboral se liquidará el finiquito que contendrá todos los conceptos económicos que regule la legislación vigente.

[3] The Audiencia Nacional is a special and exceptional high court in Spain

[4] Sentencia del Tribunal Supremo de 26 de Marzo de 2014 (CASACION 61/2013), part 7, §1

Due to the legitimate excitement over the recent Pechstein ruling, many have overlooked a previous German decision rendered in the Wilhelmshaven SV case (the German press did report on the decision here and here). The few academic commentaries (see here and here) focused on the fact that the German Court had not recognized the res judicata effect of a CAS award. Thus, it placed Germany at the spearhead of a mounting rebellion against the legitimacy of the CAS and the validity of its awards. None of the commentators weighed in on the substance of the decision, however. Contrary to the Court in Pechstein, the judges decided to evaluate the compatibility of the FIFA rules on training compensations with the EU free movement rights. To properly report on the decision and assess the threat it may constitute for the FIFA training compensation system, we will first summarize the facts of the case (I), briefly explicate the mode of functioning of the FIFA training compensation system (II), and finally reconstruct the reasoning of the Court on the compatibility of the FIFA rules with EU law (III).

I.               The complex facts of the case 

In a nutshell, the case concerns the move of an Argentinean player, with an Italian passport (as probably two-third of Argentina), to SV Wilhelmshaven and the training compensation due to its former youth clubs back in Argentina. The player, born in 1987, was an amateur player with an Argentinean club called Excursionistas from 20 March 1998 to 7 March 2005 and with River Plate from 8 March 2005 until 7 February 2007. From 8 February 2007 to 30 June 2007 he signed a fixed-term professional contract with SV Wilhelmshaven, which was later extended for one more season. 

In 2007 SV Wilhelmshaven was playing in the Regional League Nord (fourth tier of German football) and was therefore considered as a club of category 3 for the purpose of the FIFA Regulations for the Status and Transfer of Players (RSTP). In June 2007, Excursionistas and River Plate initiated proceedings with the FIFA Dispute Resolution Chamber (hereafter DRC) claiming €100,000 and €60,000 respectively in training compensation. These demands were partially granted  by the DRC (River Plate obtained “only” €57,500) in two concomitant decisions (available here and here) on 5 December 2008. 

SV Wilhelmshaven decided to appeal the DRC’s decisions to the Court of Arbitration for Sport (CAS). A hearing in front of a sole arbitrator was held on 26 August 2009 and the award rendered on 5 October 2009. The arbitrator confirmed the decision of the DRC awarding the claimed compensations to both Argentinean clubs and rejected all the objections raised by SV Wilhelsmshaven.

The club, however, continued stubbornly to refuse to pay the training compensations. On 13 September 2011, FIFA’s disciplinary Committee sanctioned SV Wilhelmshaven with additional fines and imposed a payment deadline of 30 days. If the club would not respect the deadline, its first team would face a six-point penalty. In light of non-compliance with this decision, FIFA called on the DFB (German FA) to enforce the sanction and secure the payment of the fines. The DFB dutifully implemented the order: six points were deducted and the club’s financial account with the DFB was debited from the requested €21,150. However, SV Wilhelmshaven is a tough nut to crack. Despite the confirmation of the sanctions by the DFB’s internal tribunal it kept on refusing to pay the training compensations awarded by the DRC and CAS. On 15 August 2012, the FIFA asked the DFB to deduct six more points. Given that, in the meantime, the club had been relegated to a lower league, the Norddeutscher Fussball Verband was competent to implement the latest sanction instead of the DFB. It did so on 23 August 2012 and the internal tribunal of the association later confirmed the validity of this decision. In May 2013, the club decided to challenge the point deduction in front of the German courts. Meanwhile, on 5 October 2012, a new decision of FIFA’s Disciplinary Committee imposed the relegation of the club. The SV Wilhelmshaven appealed the decision to the CAS, which confirmed FIFA’s disciplinary decision on 24 October 2013 (unfortunately the relevant CAS award has not been published). Hence, FIFA asked the DFB to implement this decision. The forced relegation was definitely ratified by the board of the Norddeutscher Fussball Verband on 7 December 2013 and validated by the internal tribunal on 20 February 2014. 

The club was challenging both the six-point deduction and the forced relegation in front of the regional Court of Bremen. In first instance, the tribunal simply rejected the claims of the club and considered that the CAS award, not challenged by the club in front of the Swiss Federal tribunal, was a valid legal basis for the sanctions. The club appealed the decision to the Highest Regional Court, which in its ruling of 30 December 2014 overruled the first instance Court. Indeed, it held that the CAS award was contrary to EU law and, therefore, could not be relied upon by the Norddeutscher Fussball Verband to sanction the club (more on this arbitration dimension of the case here and here). Combined with the Pechstein ruling, this case constitutes a powerful challenge to the CAS, but it is also a challenge to FIFA’s training compensation mechanisms. It is on this latter aspect that we will focus in this blog.

II.             The FIFA RSTP’s Training Compensation System 

Let us first take a close look at FIFA’s training compensation regime enshrined in Article 20 of the latest FIFA Regulations on the Status and Transfer of Players (RSTP). It must be highlighted that the FIFA Regulations were adopted after nearly two years of negotiations between the European Commission, UEFA, FIFA and FIFPro.[1] The negotiations ended with the adoption of a set of principles as a basis for the new FIFA transfer regulation. Concerning the training compensations, the principles stipulated that “in the case of players aged under 23, a system of training compensation should be in place to encourage and reward the training effort of clubs, in particular small clubs”. 

Article 20 of the FIFA RSTP transposing this principle reads as follows:

“Training compensation shall be paid to a player’s training club(s): (1) when a player signs his first contract as a professional, and (2) each time a professional is transferred until the end of the season of his 23rd birthday. The obligation to pay training compensation arises whether the transfer takes place during or at the end of the player’s contract. The provisions concerning training compensation are set out in Annexe 4 of these regulations.”

Hence, Article 20 establishes two situations giving rise to a right to obtain a training compensation: the signing of a first professional contract and each transfer until the end of the season of the player’s 23rd birthday. The key to understanding how this duty to pay a training compensation operates in practice can only be found in the Annex 4 of the RSTP. Article 1 paragraph 1 of Annex 4 qualifies the scope of the obligation to pay a training compensation. It states that: 

“A player’s training and education takes place between the ages of 12 and 23. Training compensation shall be payable, as a general rule, up to the age of 23 for training incurred up to the age of 21, unless it is evident that a player has already terminated his training period before the age of 21. In the latter case, training compensation shall be payable until the end of the season in which the player reaches the age of 23, but the calculation of the amount payable shall be based on the years between the age of 12 and the age when it is established that the player actually completed his training.”

Pursuant to article 2 paragraph 2 of Annex 4, a training compensation is not due when “the former club terminates the player’s contract without just cause (without prejudice to the rights of the previous clubs) “, or “the player is transferred to a category 4 club”, or “a professional reacquires amateur status on being transferred”. 

To calculate the amount of training compensation due, every association member of FIFA is “to divide their clubs into a maximum of four categories in accordance with the clubs’ financial investment in training players”.[2] For each category the training costs are equivalent “to the amount needed to train one player for one year multiplied by an average “player factor”, which is the ratio of players who need to be trained to produce one professional player”.[3] The current training costs as defined by each football association for 2014 are available here. The training compensation is meant to cover “the costs that would have been incurred by the new club if it had trained the player itself”.[4] Thus it is calculated “by taking the training costs of the new club multiplied by the number of years of training, in principle from the season of the player’s 12th birthday to the season of his 21st birthday”.[5] The training costs for players for the seasons between their 12^th and 15^th birthdays, however, are always based “on the training and education costs of category 4 clubs”.[6]

Following the negotiations with the European Commission, FIFA carved out a specific provision for players moving from one association to another inside the territory of the EU (including also the EEA). This provision stipulates that “[i]f the player moves from a lower to a higher category club, the calculation shall be based on the average training costs of the two clubs”.[7] If the player moves from a higher to a lower category, “the calculation shall be based on the training costs of the lower category club”.[8] Moreover, “the final season of training [in the sense of article 1 paragraph 1 Annex 4] may occur before the season of the player’s 21st birthday if it is established that the player completed his training before that time” .[9] Finally, and maybe most importantly, “[i]f the former club does not offer the player a contract, no training compensation is payable unless the former club can justify that it is entitled
to such compensation”.[10] 

The FIFA framework applicable to training compensations is not easy to navigate and many of its provisions have been refined by the jurisprudence of the CAS and the DRC (see this blog for a synthetic assessment).[11] The compatibility of this complex regulatory construction with EU law has never been tested in front of courts (be it national or European). This makes this lawsuit so decisive. 

III.           The SV Wilhelmshaven case and the compatibility of FIFA’s training compensation system with EU law

In its Bosman ruling, the Court of Justice (hereafter CJ) held that the aim of “encouraging the recruitment and training of young players must be accepted as legitimate”.[12] It added “that the prospect of receiving transfer, development or training fees is indeed likely to encourage football clubs to seek new talent and train young players” .[13] Nevertheless, it concluded that “because it is impossible to predict the sporting future of young players with any certainty and because only a limited number of such players go on to play professionally, those fees are by nature contingent and uncertain and are in any event unrelated to the actual cost borne by clubs of training both future professional players and those who will never play professionally”.[14] Hence, receiving such fees could not be “a decisive factor in encouraging recruitment and training of young players or an adequate means of financing such activities, particularly in the case of smaller clubs”.[15] As a final nail into the coffin of training compensations, at least it was thought at that time, the Court followed its Advocate General in holding that “the same aims can be achieved at least as efficiently by other means which do not impede freedom of movement for workers”.[16] 

The FIFA training compensation system as it stands nowadays is a rebuttal to the Bosman ruling. Indeed, it pretends to do the impossible in the eyes of the Court: calculating realistically the costs of training a player in a specific club in order to offer an objective benchmark for the training compensations. Moreover, FIFA simply disregarded the proposals made by Advocate General Lenz, who suggested potential alternative financing mechanisms to support the training of players.[17] FIFA’s rules, endorsed by the EU Commission, have never been tested in front of the CJ, though it came close to it in the relatively recent Olympique Lyonnais case. Here, the Court reaffirmed that “the objective of encouraging the recruitment and training of young players must be accepted as legitimate”.[18] It also recognized that “the clubs which provided the training could be discouraged from investing in the training of young players if they could not obtain reimbursement of the amounts spent for that purpose where, at the end of his training, a player enters into a professional contract with another club”.[19] Thus, it held “that a scheme providing for the payment of compensation for training where a young player, at the end of his training, signs a professional contract with a club other than the one which trained him can, in principle, be justified by the objective of encouraging the recruitment and training of young players”.[20] However, to be proportionate, the scheme must be “taking due account of the costs borne by the clubs in training both future professional players and those who will never play professionally” .[21] In the Olympique Lyonnais case, the French system in place at the time of the dispute, and since then replaced, was deemed incompatible with EU law as the amount of the compensation was not directly correlated with the costs of training the player. Nonetheless, UEFA and FIFA were prompt to see in this judgment a “significant step forward” [22] for the compatibility of the FIFA system with EU law. The present SV Wilhelmshaven case is a good opportunity to test this assumption.

SV Wilhelmshaven had argued in front of the CAS that the FIFA RSTP was contrary to the right to free movement of workers under EU law. However, the single arbitrator rejected the applicability of EU law. Instead, relying on previous CAS awards, it held that “such argument would have been available to the individual Player, not to the Appellant”.[23] This interpretation contradicts the well-established case law of the CJ[24], as noted by the Bremen Court.[25] Moreover, the CAS also declined to recognize the applicability to the case at hand of Article 6 of the Annex 4 to the FIFA RSTP. It considered that “[t]he title of this provision clearly suggests that its scope is narrowly circumscribed within a limited geographic area, i.e. the EU/EEA territory”.[26] Furthermore, “it appears that article 6 of Annex 4 to the FIFA Regulations is nothing more than the codification of the system agreed upon by the European authorities and put into place to govern the transfer of a player moving from one association to another inside the territory of the EU/EEA”.[27] Thus, the panel sees “no reason to depart from the unambiguous wording of article 6 of Annex 4 to the FIFA Regulations, which is obviously not applicable in the case of a player moving from a country outside the EU/EEA to a country within the EU/EEA”.[28] On this exact point, the Bremen Court begged to differ. 

The Bremen Court was not convinced by the distinction between intra-EU and extra-EU transfers made in article 6 Annex 4. The right to free movement of workers extends also to EU citizens moving from a non-EU country to an EU Member state. Therefore, not only could the club legitimately invoke the right to free movement of its player, but it was also right to consider that article 6 annex 4 should have been applicable to an EU citizen moving from Argentina to Germany. Consequently, the German judges considered that the non-application of article 6 and the imposition of the calculation method foreseen in article 4 and 5 of the Annex 4 were contrary to the player’s free movement rights under EU law.[29] Nonetheless, it also acknowledged that the FIFA training compensation rules were supporting “the objective of encouraging the recruitment and training of young players”.[30] Furthermore, Article 6 of the Annex 4 is deemed suitable to attain this objective and compatible with EU law.[31] The key point being for training compensations to cover only the real costs endured to train the player[32], this is what the CAS and the DRC have failed to take in account in the SV Wilhelmshaven case.[33]

Conclusion 

The SV Wilhelmshaven case has potentially damaging consequences for the Court of Arbitration for sport. It intrudes into the system of private enforcement of the CAS awards by forcing the sporting association to consider whether the awards are compatible with German public policy, and especially with EU law before enforcing disciplinary measures based on them. We have deliberately ignored this aspect of the case, as it will be the object of a future blog post. Instead, we decided to focus on FIFA’s training compensation system and its compatibility with EU law.

The Bremen Court’s ruling highlighted the substantial shortcomings of the CAS in dealing with EU law. A long-standing CAS jurisprudence was shown fundamentally flawed and overtly contradictory to the CJ’s interpretation of EU law. Moreover, the FIFA training compensation system as it stands was considered incompatible with EU law in the context of a transfer of an EU citizen from Argentina to an EU Member state. This is not a remote scenario especially when South-American players are involved. However, there is also some good news for FIFA, as the Court found that the FIFA intra-EU training compensation rule is in line with EU law. The case is now at the Bundesgerichtshof (BGH), the highest German civil Court. With this case and the Pechstein case on its plate, the BGH will fundamentally shape the future of sport’s private dispute resolution mechanisms and governance structure. If it is asked to do so or ex officio if it feels the need, the BGH could refer a preliminary question to Luxembourg on the compatibility of the FIFA training compensation system with EU free movement rights. This would be the best way to finally settle a question which has been left wide open since the Bosman ruling, now 20 years ago.

[1] See B. Garcia, ‘The 2001 informal agreement on the international transfer system’, European Sports Law and Policy Bulletin, I-2011, pp.17-29.

[2] Article 4 paragraph 1 of Annex 4.

[3] Article 4 paragraph 1 of Annex 4

[4] Article 5 paragraph 1 of Annex 4

[5] Article 5 paragraph 2 of Annex 4

[6] Article 5 paragraph 3 of Annex 4

[7] Article 6 paragraph 1 a) of Annex 4

[8] Article 6 paragraph 1 b) of Annex 4

[9] Article 6 paragraph 2 of Annex 4

[10] Article 6 paragraph 3 of Annex 4

[11] See F. de Weger, The jurisprudence of the FIFA Dispute Resolution Chamber, ASSER press, 2008, pp. 117-133.

[12]Case C-415/93 Union Royale Belge des Sociétés de Football Association and Others v Bosman and Others [1995] ECR I-4921, paragraph 106.

[13] Ibid, paragraph 108.

[14] Ibid, paragraph 109.

[15] Ibid.

[16] Ibid, paragraph 110.

[17] AG Lenz in Case C-415/93 Union Royale Belge des Sociétés de Football Association and Others v Bosman and Others, [1995] ECR I-4921, paragraph 239

[18] C-325/08 Olympique Lyonnais SASP v Olivier Bernard [2010], paragraph 39.

[19] Ibid, paragraph 44.

[20] Ibid, paragraph 45.

[21] Ibid.

[22] J. Zylberstein, ‘The Olivier Bernard Judgment : A Significant step forward for the training of players’, in M. Colucci, European Sports Law and Policy Bulletin 1/2010

[23] CAS 2009/A/1810 & 1811 SV Wilhelmshaven v. Club Atlético Excursionistas & Club Atlético River Plate, award of 5 October 2009, paragraph.42. Referring to CAS 2004/A/794 and CAS 2006/A/1027.

[24] « Whilst the rights deriving from Article 48 of the Treaty are undoubtedly enjoyed by those directly referred to - namely, workers - there is nothing in the wording of that article to indicate that they may not be relied upon by others, in particular employers. » C-350/96 Clean Car Autoservice Gmbh v Landeshauptmann von Wien [1998] ECR I-2521, paragraph 19.

[25] OLG Bremen, 30.12.2014, 2 U 67/14

[26] CAS 2009/A/1810 & 1811 SV Wilhelmshaven v. Club Atlético Excursionistas & Club Atlético River Plate, award of 5 October 2009, paragraph 46.

[27] Ibid, paragraph 49

[28] Ibid.

[29] OLG Bremen, 30.12.2014, 2 U 67/14, p.22-25.

[30] „Daraus folgt, dass eine Regelung wie im vorliegenden Fall, die eine Ausbildungsentschädigung für den Fall vorsieht, dass ein Nachwuchsspieler nach Abschluss seiner Ausbildung einen Vertrag als Berufsspieler mit einem anderen Verein als dem abschließt, der ihn ausgebildet hat, grundsätzlich durch den Zweck gerechtfertigt werden kann, die Anwerbung und Ausbildung von Nachwuchsspielern zu fördern“. Ibid, p.22.

[31] „Soweit in Art.6 Ziff. 1.b) bei einem Wechsel des Spielers von einem Verein der höheren in eine niedrigere Kategorie die Entschädigung gemäss den Trainingskosten des Vereins der tieferen Kategorie bemessen wird, handelt es sich um eine Regelung, die zu einer Erleichterung des Vereinswechsels führt, also gegenüber der an sich erforderlichen Orientierung an den Kosten des ausbildenden Vereins im Hinblick auf Art.45 AEUV eine Besserstellung des Spielers enthält und daher insoweit unbedenklich ist.“ Ibid, p.25.

[32] « Transferentschädigungen erfüllen mithin die Funktion des Ersatzes von Ausbildungskosten nur dann, wenn sie sich an den tatsächlichen angefallenen Ausbildungskosten orientieren und nicht am Marktwert des fertigen Spielers ». Ibid, p.23.

[33] « Die hier vorgenommene Entschädigung orientiert sich somit nicht an den für die Ausbildung bei den argentinischen Vereinen angefallenen Kosten, sondern nimmt einen Ausgleich in Höhe des pauschal eingeschätzten Aufwands vor, der dem übernehmenden Verein im Hinblick auf diesen Spieler erspart worden ist. » Ibid, p.24.