Asser International Sports Law Blog

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

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

Check out the full programme HERE and register for free HERE.

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Editor's note: Saverio P. Spera is an Italian qualified attorney-at-law. He has practiced civil and employment law in Italy and briefly worked at the Asser International Sports Law Centre before joining FIFA in 2017. Until May 2024, he has worked within the FIFA legal division - Litigation Department, and lectured in several FIFA sports law programmes. In the spring of 2024 he has co-founded SP.IN Law, a Zurich based international sports law firm.

On 21 December 2023 a judicial hat-trick stormed the scene of EU sports law. That day, the European Court of Justice (the “ECJ”) issued three decisions: (i) European Superleague Company, SL v FIFA and UEFA (Case C-333/21); (ii) UL and SA Royal Antwerp Football Club v Union royale belge des sociétés de football association ASBL (Case C-680/21)and (iii) International Skating Union (ISU) v. European Commission – Case C-124/21.

These judgments were much scrutinised (see here, here and here) in the past 6 months. For the reader’s relief, this paper will not venture into adding another opinion on whether this was a fatal blow to the foundation of EU sports law or if, after all, the substantive change is minimal (as persuasively argued here). It will analyse, instead, UEFA’s recent amendments of its Statutes and Authorisation Rules governing International Club Competitions (the “Authorisation Rules”) and whether these amendments, clearly responding to the concerns raised in the ISU judgment with respect to the sports arbitration system,[1] might pave the way for other Sports Governing Bodies (SGBs) to follow suit and what the implications for CAS arbitration might be. More...

Editor's note: Dr Rishi Gulati is Associate Professor in International Law at the University of East Anglia (UK) and Barrister in Law. He has a PhD from King’s College London, Advanced Masters in Public International Law from Leiden University, and a Bachelor of Laws from the Australian National University. Amongst other publications, he is the author of Access to Justice and International Organisations (Cambridge University Press, 2022). He has previously worked for the Australian Government, has consulted for various international organizations, and regularly appears as counsel in transnational cases.

On 1 December 2024, Jay Shah, the son of India’s powerful Home Minister and Modi confidante Amit Shah, will take over the role of the Independent Chair of the International Cricket Council (ICC). This appointment reflects the influence India now has on the governance of cricket globally. A key test Jay Shah will face is whether or not the ICC should suspend the Afghanistan Cricket Board (ACB) from its membership as Afghanistan no longer maintains a women’s cricket team contrary to the organization’s own rules, as well as its human rights responsibilities. More...

Editor's note: Ella Limbach is currently completing her master’s degree in International Sport Development and Politics at the German Sport University Cologne. Her interests include human rights of athletes, labour rights in sport, the intersection of gender, human rights and sport and the working conditions in women’s football. Previously, she graduated from Utrecht University with a LL.M in Public International Law with a specialization in International Human Rights Law. This blog was written during Ella's internship at the Asser Institute where she conducted research for the H.E.R.O. project. The topic of this blog is also the subject of her master's thesis.

Women’s football has experienced exponential growth over the past decade, though the professionalization of the women’s game continues to face barriers that can be tied to the historical exclusion of women from football and insufficient investment on many levels. While attendance records have been broken and media coverage has increased, the rise in attention also highlighted the need for special accommodations for female footballers regarding health and safety at the workplace. Female footballers face gender specific circumstances which can have an impact on their health such as menstruation, anterior cruciate ligament (ACL) injuries and the impact of maternity. As the recent ILO Brief on ‘Professional athletes and the fundamental principles and rights at work' states “gender issues related to [occupational health and safety] risks are often neglected (p. 23).” While it could be argued that from a human rights point of view article 13(c) of the Convention on the Elimination of Discrimination of Women stipulates “the right to participate in […] sports [on an equal basis to men],” reality shows that so far practices of men’s football were simply applied to women’s football without taking into consideration the physiological differences between male and female players and the implications that can have for female players’ health. The ILO Declaration on Fundamental Principles and Rights at Work(ILO Declaration, amended in 2022) includes “a safe and healthy working environment” as one of the fundamental rights at work (Art. 2e). This begs the question whether the scope of the right to occupational health and safety at the workplace includes the consideration of female specific health issues in women’s football. More...

The Editors of the International Sports Law Journal (ISLJ) invite you to submit abstracts for the next edition of the ISLJ Conference on International Sports Law, which will take place on 24 and 25 October 2024 at the Asser Institute in The Hague. The ISLJ, published by Springer and TMC Asser Press, is the leading academic publication in the field of international sports law and the conference is a unique occasion to discuss the main legal issues affecting international sports and its governance with renowned academic experts.

We welcome abstracts from academics and practitioners on all issues related to international and transnational sports law and their impact on the governance of sport. We also welcome panel proposals (including a minimum of three presenters) on specific issues of interest to the Journal and its readers. For this year’s edition, we specifically invite submissions on the following themes and subthemes:

Reformism in transnational sports governance: Drivers and impacts

Legal and social drivers of reforms in transnational sports governance
The role of strategic litigation (before the EU/ECtHR/National courts) as a driver of reform;
The role of public/fan pressure groups on clubs, competition organisers and governments as a driver of change.
The impact of internal reforms in transnational sports governance: Cosmetic or real change? (e.g. IOC Agenda 2020+5, FIFA governance reforms, CAS post-Pechstein changes, WADA sfter the Russian doping scandal)
Emerging alternatives to private sports governance – the UK’s Independent Football Regulator.

The organization and regulation of mega sporting events: Current and future challenges

Mega-sporting events as legalized sites of digital surveillance
Greening mega-sporting events (e.g. carbon neutral pledges, environmental footprints of events, the impact of multiple hosting sites)
Mega-sporting events and the protection of human rights and labour rights (e.g. Paris 2024 Social Charter, Euro 2024 human rights commitments)
The Olympic Games and athletes’ economic rights (remuneration/advertisement)
Reviews of the legal issues raised at Euro 2024 in Germany and the Paris 2024 Olympic Games
Previews of the legal issues likely to have an impact on the FIFA 2026 World Cup and the Milano-Cortina 2026 Winter Olympic Games

Please send your abstract of 300 words and CV no later than 15 July 2024 to a.duval@asser.nl. Selected speakers will be informed by 30 July.

The selected participants will be expected to submit a draft of their paper by 1 October 2024. Papers accepted and presented at the conference are eligible for publication in a special issue of the ISLJ, subject to peer-review.

The Asser Institute will provide a limited number of travel & accommodation grants (max. 300€). If you wish to be considered for a grant, please explain why in your submission.

This seminar is part of the Asser International Sports Law Centre's event series on the intersection between transnational sports law and governance and gender. Dr Pavlidis will present her take on feminist theories and sport governance by exploring sports and in particular Australian rules football and roller derby as sites of cultural transformation.

Register HERE

Australian rules football is Australia's most popular spectator sport and for most of its history it has been a men's-only sport, including in its governance and leadership. This is slowly changing. Roller derby on the other hand has been reinvented with an explicitly DIY (Do It Yourself) governance structure that resists formal incorporation by 'outsiders'. This paper provides an overview of sport governance in the Australian context before focusing in on these two seemingly disparate sport contexts to explore the challenges of gender inclusive governance in sport.

Dr Adele Pavlidis is an Associate Professor in Sociology with the School of Humanities, Languages and Social Science at Griffith University in Australia. She has published widely on a range of sociocultural issues in sport and leisure, with a focus on gender and power relations. Theoretically her work traverses contemporary scholarship on affect, power and organisations, and she is deeply interested in social, cultural and personal transformation and the entanglements between people, organisations, and wellbeing.

We look forward to hearing Dr Pavlidis present on this topic, followed by reflections and comments by Dr Åsa Ekvall from the Erasmus Center for Sport Integrity & Transition, and Dr Antoine Duval from the T.M.C. Asser Institute. There will also be a Q&A with the audience.

Download the latest programme here

Register HERE

Reformism in transnational sports governance: Drivers and impacts

Legal and social drivers of reforms in transnational sports governance
The role of strategic litigation (before the EU/ECtHR/National courts) as a driver of reform;
The role of public/fan pressure groups on clubs, competition organisers and governments as a driver of change.
The impact of internal reforms in transnational sports governance: Cosmetic or real change? (e.g. IOC Agenda 2020+5, FIFA governance reforms, CAS post-Pechstein changes, WADA sfter the Russian doping scandal)
Emerging alternatives to private sports governance – the UK’s Independent Football Regulator.

The organization and regulation of mega sporting events: Current and future challenges

Mega-sporting events as legalized sites of digital surveillance
Greening mega-sporting events (e.g. carbon neutral pledges, environmental footprints of events, the impact of multiple hosting sites)
Mega-sporting events and the protection of human rights and labour rights (e.g. Paris 2024 Social Charter, Euro 2024 human rights commitments)
The Olympic Games and athletes’ economic rights (remuneration/advertisement)
Reviews of the legal issues raised at Euro 2024 in Germany and the Paris 2024 Olympic Games
Previews of the legal issues likely to have an impact on the FIFA 2026 World Cup and the Milano-Cortina 2026 Winter Olympic Games

Please send your abstract of 300 words and CV no later than 15 July 2024 to a.duval@asser.nl. Selected speakers will be informed by 30 July.

The Asser Institute will provide a limited number of travel & accommodation grants (max. 300€). If you wish to be considered for a grant, please explain why in your submission.

Join us for the first online version of our unique training programme on ‘Sport and human rights’ jointly organised by the Centre for Sport and Human Rights and the Asser Institute taking place on May 22-24 & May 27-29.

After the success of the first editions in 2022 and 2023 the programme returns, focusing on the link between the sport and human rights and zooming in on a number of topics, such as the UN Guiding Principles for Business and Human Rights and their application in sports. We will also adopt a human rights lens to sport governance and address freedom of speech, the rights of athletes, and access to remedy.

Tackling contemporary human rights challenges in sport

The programme brings together the latest in academic research with practical experiences from working in the field in an interactive package, fostering productive exchanges between the speakers and participants. Theoretical knowledge will be complemented by exposure to hands-on know-how.

Participants will have the opportunity to learn from experts from the Asser Institute, the Centre for Sport and Human Rights, and high-profile external speakers from both academia and practice.

What will you gain?

An extensive introduction to the emergence of the sport and human rights movement
A greater understanding of the normative framework for human rights standards in sport
A comprehensive overview of the latest developments in the interplay between gender and sports
Practical know-how to govern human rights in the context of sporting organisations
Practical know-how to address human rights risks in the context of day-to-day sports, including safeguarding
Practical know-how to access remedy in human rights disputes
The opportunity to engage in discussions and network with leading academics and professionals

Topics addressed in this summer programme include:

The emergence of the sport and human rights discussion/movement
The integration of human rights in the governance of sport
The protection of athletes’ rights
Access to remedy for sport-related human rights harms

Read the full programme.

Register HERE

In partnership with:

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Editor's note: This is a call for papers for a workshop inviting sports lawyers and historians to reflect on how the lex olympica developed within the last 128 years through the prism of challenges and disruptions to the Olympic Games and the sharp and incremental changes they provoked.

Background

The lex olympica are legal rules the International Olympic Committee created to govern the Olympic Movement. Since the revival of the Olympic Games in 1896, the lex olympica, with the Olympic Charter taking its central place, has undergone tremendous changes. It has increased not only in volume but also in complexity and reach.

While some changes were designed to give further detail to the Olympic values, others seem to serve as responses to numerous disruptions and challenges that the Olympic Games experienced on their way. History shows that the Olympic Games faced boycotts, apartheid, armed conflicts, wars, propelled commercialisation, corruption, critique based on human rights and sustainability, pandemics, and many other obstacles.

One can see triggers for changes in specific incidents, broader societal changes, external political interests, long-term internal processes, etc., or further differentiate them according to relevant stakeholders impacting the change, such as IOC, NOCs, IFs, NFs, athletes, commercial partners, television, activist groups, NGOs, governments, host countries, etc. Regardless of their taxonomies, all these challenges met different reactions and affected the Olympic regulation in various ways. The IOC chose to distance the Olympic Games from some challenges and fully embrace others.

Keynote speakers

Jörg Krieger, Associate Professor, Department of Public Health and Sport Science, Aarhus University; co-leader of the Lillehammer Olympic and Paralympic Studies Center; Associate Professor II Inland Norway University of Applied Sciences.

Mark James, Professor of Sports Law and Director of Research in the Manchester Law School at Manchester Metropolitan University, Editor-in-Chief of the International Sports Law Journal.

Deadline for abstract submission: 15 June 2024

Confirmation of participation: 30 June 2024

Publication: Selected contributions will be considered for a special issue at International Sports Law Journal

Contact information

Yuliya Chernykh (Associate Professor)

yuliya.chernykh@inn.no

Organizer

Lillehammer Olympic and Paralympic Studies Center (LOSC), Inland School of Business and Social Sciences and Legal development research group at INN University

Dear readers,

I have the pleasure to inform you that our (with Prof. Johan Lindholm and Alexander Kruger from Umeå University) edited volume entitled 'The European Roots of the Lex Sportiva: How Europe Rules Global Sport' has been published Open Access by Hart Publishing.

You can freely access the volume at: https://www.bloomsburycollections.com/monograph?docid=b-9781509971473

Abstract:

This open access book explores the complexity of the lex sportiva, the transnational legal regime governing international sports. Pioneering in its approach, it maps out the many entanglements of the transnational governance of sports with European legal processes and norms. The contributors trace the embeddedness of the lex sportiva within national law, European Union law and the European Convention on Human Rights. While the volume emphasizes the capacity of sports governing bodies to leverage the resources of national law to spread the lex sportiva globally, it also points at the fact that European legal processes are central when challenging the status quo as illustrated recently in the Semenya and Superleague cases. Ultimately, the book is also a vantage point to start critically investigating the Eurocentricity and the complex materiality underpinning the lex sportiva.

Table of contents:

1. Made in Europe: Lex Sportiva as Embedded Transnational Law - 1–14 - Antoine Duval , Alexander Krüger and Johan Lindholm

I. The European Roots of Lex Sportiva

2. Embedded Lex Sportiva: The Swiss Roots of Transnational Sports Law and Governance - 17–40 - Antoine Duval

3. Putting the Lex into Lex Sportiva: The Principle of Legality in Sports - 41–68 - Johan Lindholm

4. Europeanisation of the Olympic Host (City) Contracts - 69–92 - Yuliya Chernykh

5. The Influence of European Legal Culture on the Evolution of Lex Olympica and Olympic Law - 93–118 - Mark James and Guy Osborn

6. Who Regulates the Regulators? How European Union Regulation and Regulatory Institutions May Shape the Regulation of the Football Industry Globally - 119–152 - Christopher A Flanagan

7. The Europeanisation of Clean Sport: How the Council of Europe and the European Union Shape the Proportionality of Ineligibility in the World Anti-Doping Code - 153–188 - Jan Exner

II. The Integration of European Checks into the Lex Sportiva

8. False Friends: Proportionality and Good Governance in Sports Regulation - 191–210 - Mislav Mataija

9. Sport Beyond the Market? Sport, Law and Society in the European Union - 211–228 - Aurélie Villanueva

10. EU Competition Law and Sport: Checks and Balances ‘à l’européenne’ - 229–256 - Rusa Agafonova

11. Is the Lex Sportiva on Track for Intersex Person’s Rights? The World Athletics’ Regulations Concerning Female Athletes with Differences of Sex Development in the Light of the ECHR - 257–282 - Audrey Boisgontier

III. Engaging Critically with a Eurocentric Lex Sportiva

12. Lex Sportiva and New Materialism: Towards Investigations into Sports Law’s Dark Materials? 285–308 - Alexander Krüger

Editor's note:

Gesa Kuebek holds an LLM and graduated from the University of Bologna, Gent and Hamburg as part of the Erasmus Mundus Master Programme in Law and Economics and now work as an intern for the Asser Instituut.

On Monday, 9 November, the German Football Association (DFB) announced in a Press Release the resignation of its head, Wolfgang Niersbach, over the 2006 World Cup Affair. In his statement, Niersbach argued that he had “no knowledge whatsoever” about any “payments flows” and is now being confronted with proceedings in which he was “never involved”. However, he is now forced to draw the “political consequences” from the situation. His resignation occurred against the backdrop of last week’s raid of the DFB’s Frankfurt headquarters and the private homes Niersbach, his predecessor Theo Zwanziger and long-standing DFB general secretary Horst R. Schmidt. The public prosecutor’s office investigates a particularly severe act of tax evasion linked to awarding the 2006 World Cup. The 2006 German “summer fairy-tale” came under pressure in mid-October 2015, after the German magazine “Der Spiegel” shocked Fußballdeutschland by claiming that it had seen concrete evidence proving that a €6.7 million loan, designated by the FIFA for a “cultural programme”, ended up on the account of Adidas CEO Robert-Louis Dreyfuß. The magazine further argued that the money was in fact a secret loan that was paid back to Dreyfuß. Allegedly, the loan was kept off the books intentionally in order to be used as bribes to win the 2006 World Cup bid. The public prosecutor now suspects the DFB of failing to register the payment in tax returns. German FA officials admit that the DFB made a “mistake” but deny all allegations of vote buying. However, the current investigations show that the issues at stakes remain far from clear, leaving many questions regarding the awarding of the 2006 World Cup unanswered.

The present blog post aims to shed a light on the matter by synthetizing what we do know about the 2006 World Cup Affair and by highlighting the legal grounds on which the German authorities investigate the tax evasion.

What’s the 2006 World Cup Affair all about?

The scandal centres on the payment of €6.7 million, which was, according to Der Spiegel, secretly loaned to the DFB by the private investor Louis Dreyfuß, at the time CEO of Adidas, prior to the Word Cup decision on 6 July 2000. Accordingly, the money was never recorded in either the balance sheets of the Bid Committee or, later, in the balance sheets of the German Organisation Committee of the World Cup. Der Spiegel argued that the money was used to buy the four votes of the Asian representatives of the 24-membered FIFA Executive Committee. The four Asians voted together with the European representatives at the elections in July 2000 in favour of Germany becoming the host of the 2006 World Cup. Due to the fact the New Zealand’s representative Charles Dempsey surprisingly refrained from voting in the last ballot, Germany won with 12:11 votes in favour. In a later article, Der Spiegel stated that Zwanziger and Schmidt discussed in a recorded telephone conversation to whom the Dreyfuß millions were transferred and mentioned the name of Mohamed Bin Hammam in this context. It is worth remembering that the Qatari Bin Hammam, a former member of the FIFA Executive Committee from 1996 to 2011, was charged with offering bribes for votes and banned for life from all football activities by FIFA on two occasions in 2011 and 2012. The DFB, however, denies all allegations of vote-rigging.

The current investigations of the public prosecutor focus on the supposed repayment of the €6.7 million loan in April 2005. The Organisation Committee officially declared the money as the German contribution to a “cultural programme” during the 2006 World Cup. As such, the German money went to a FIFA account in Geneva, Switzerland. However, the FIFA cultural programme never happened. Instead, FIFA allegedly transferred the money immediately to an account of Louis Dreyfuß in Zurich. Up to now, there are neither bills nor a receipt of payments at FIFA for the ominous €6.7 million. Furthermore, it remains unclear through which channels the DFB’s money was transferred back to Louis Dreyfuß.

How does the DFB react?

Initially, the DFB acknowledged in a Press Release of 16 October that evidence came to light “that a payment of the Organisation Committee in April 2005 amounting to €6.7 million attributed to FIFA may not have been used according to the indicated purpose”. On that same day, Der Spiegel published its article. The DFB promptly reacted in another Press Release, denying the existence of slush funds. It refuted the allegations of Der Spiegel as “completely untenable” and denied any accusations of vote-rigging. Niersbach added that the DFB “will refute Der Spiegel’s claims and take legal action against them”. In a similar manner, German football legend Franz Beckenbauer, who acted as the head of the Head of the 2006 World Cup Organisation Committee, repudiated the article’s claims publicly.

By contrast, on 23 October, Zwanziger described Niersbach, his well-known enemy and successor as DFB president, as a liar in a Spiegel interview, acknowledging for the first time the existence of slush-funds “during the German World Cup application”. He argued that it is, “similarly clear that the current DFB president has not just been aware of the matter for a few weeks, as he states, but at least since 2005”.

Shortly thereafter, Franz Beckenbauer admitted for the first time that “mistakes” had been made, but still denied vote buying. According to the DFB, the €6.7 million were indeed disguised under the false pretences of the “cultural programme” and used to repay the loan to Louis Dreyfuß. However, the DFB claims that the original payment to the German Organisation Committee led by Franz Beckenbauer was made in 2002, thus after Germany had already won the 2006 World Cup bid. According to the DFB, the money was used to fulfil a particular demand of FIFA: FIFA president Blatter requested an advanced payment of €6.7 million to guarantee a €170 million loan.[1] Beckenbauer acknowledged that the Organisation Committee should not have agreed to the proposal of the FIFA Finance Committee. Blatter, however, denies this version.[2]

By this time, the DFB had contracted the law firm ‘Freshfields Bruckhaus Deringer’ to investigate the matter. On 27 October, the law firm stated that the proceedings will probably take a long time.

Why is the German public prosecutor’s office investigating tax evasion?

On 19 October, the German Prosecutor’s office stated that they were in the process of verifying an initial suspicion before launching a preliminary investigation. Possible criminal wrongdoings involved deception, fraud and corruption. However, in a later Press Release, the public prosecutor’s office in Frankfurt stated that there would be no further investigation into the alleged crimes due to the expiration of the limitation period of proceedings. Instead, a preliminary investigation involving a particularly severe case of tax fraud was initiated.

By indicating the €6.7 million transfer as a contribution to the “FIFA cultural programme” on the DFB’s tax return, the transaction was classified as an “operating expense” under German tax law and was as such tax deductible. The public prosecutor’s office, however, thinks that the payment had in fact a different purpose. As a result of this requalification, the payment cannot be declared as a deducible operating expense anymore. Therefore, the suspects are accused of declaring wrongful tax returns within the limit of their prior responsibilities in the Organisations Committee, thereby evading corporate and commercial taxes as well as solidarity surcharges[3] for the year 2006 to a substantially high extent.

According to an article of the “Süddeutsche Zeitung”, the falsified tax return were signed by Niersbach himself. Niersbach denies “any involvement whatsoever” in the affair.

What are the legal grounds under German Law?

The legal basis for prosecution of tax evasion is the eighth chapter (§§ 369-412) of the Abgabenordnung (Fiscal Code; abbr. AO). Here, tax offences are distinguished into tax crimes (Steuerstraftaten) and misdemeanours (Steuerordnungswidrigkeiten). Whilst the former is characterised as a deliberate act, the latter offence is triggered in case of gross negligence. Only tax crimes are punishable by penalties and imprisonment.[4] The core offence within the category of tax crimes is tax evasion (Steuerhinterziehung) which is regulated under § 370 AO. A natural or legal person commits tax evasion by (i) misrepresenting or concealing relevant information regarding taxation to tax authorities; (ii) neglecting tax disclosure duties; or (iii) refraining from the compulsory use of tax stamps (§ 370 AO Abs. 1). As stated above, the act of tax evasion must be committed deliberately. In accordance with § 78 Strafgesetzbuch (Criminal Law Code; abbr. StGB), the statutory limitation period for prosecution of tax crimes is five years. However, the limitation period for tax repayment duties amounts to ten years; moreover, for tax repayment duties 6% interest per year is added. The potential sentence for tax evasion under German Law ranges from a financial penalty to a prison sentence of up to five years. In particularly serious cases of tax evasion in conjunction with abuse of an evader’s official authority or with fraudulent counterfeit the possible sentence ranges from minimally six month to maximally ten years of imprisonment (§ 370 AO Abs. 3 S. 1-5). If tax evasion is committed on a professional basis or as part of an organized crime (Gewerbs-/ Bandenmaessige Steuerhinterziehung) as stipulated in § 370a AO, the possible sentence ranges from one up to ten years of imprisonment.[5]

The search (Durchsuchungen) of private homes and business premises are primarily regulated in §§ 102 ff. Strafprozessordnung (Code of Criminal Procedure; abbr. StPO). Confiscation, or Beschlagnahmung, is regulated in §§ 98 ff. StPO. A search is conducted during preliminary investigations, and has to be based on “sufficient factual implications” (§ 152 Abs. 2 StPO). The preliminary investigation procedure can have three possible outcomes: First, one can decide to close the proceedings (§§386, 389 AO); second one can indorse a penalty order (Strafbefehl §§400; 407 StPO); and third, if enough evidence has been collected, the prosecutor can go to court and charge the defendant for tax evasion (§170 StPO).[6]

Against whom does the German prosecutor investigates?

The prosecutor’s investigation does not target the DFB as such. As stated in the introduction, suspects are the recently resigned DFB president Wolfgang Niersbach, who was the vice-president of the German Organisation Committee of the 2006 World Cup, his predecessor Theo Zwanziger, who acted as the treasurer of the Organisations Committee and Horst R. Schmidt, who was the managing Vice-President of the Organisations Committee and until 2007 General Secretary of the DFB. If Niersbach actually signed the falsified tax return papers, his role in the affair will most likely be difficult to deny.

The exact role of the other two officials in the putative tax evasion scheme remains unclear. Especially the role of Zwanziger raises questions. Not only did he publicly reveal Niersbach’s knowledge of the affair, he also gave evidence in front of ‘Freshfields Bruckhaus Deringer’ on 28 October. Although contracted by the DFB, the members of the law firm are supposed to act as external investigators. Zwanziger stated that he had “submitted all his documents [and] presented his annotations and assessments”. Six days later, the public prosecutor’s office initiated the preliminary investigation on tax evasion and searched the aforementioned premises. At this point in time, a linkage between Zwanziger’s testimony and the start of the preliminary investigations remains purely speculative.

It is further unclear why the investigators refrain from targeting Franz Beckenbauer, who acted as the president of the Organisations Committee. The prosecutor argued that Beckenbauer had “nothing to do” with the tax evasion. By contrast, the German journal “Handelsblatt” suggested that “the most likely explanation” is that Beckenbauer lives in Austria and is thus outside the jurisdictional reach of the investigators.

What potential charges are the accused facing?

As the topic of the missing €6.7 million arose prior to any of the statements of the FIFA officials and – as to my knowledge - no retroactive payments have been made, the accused will not be exempted from charges under § 371 AO. If enough evidence can be found and if the accused are proven guilty in front of a Court, the accused six months to ten years imprisonment in case of a severe tax evasion scheme (§ 370 AO Abs. 3).

Why does the combination of “tax evasion” “Germany” and “Louis Dreyfuß” rings a bell?

It is not the first time that Louis Dreyfuß has been involved in a “German football scandal”. In 2000, Dreyfuß provided a loan to Bayern Munich’s Uli Hoeneß of 5 million Deutschmark (around €2.56 million) as “play money” to speculate primarily on shares and current exchange rates, which was deposited in a Zurich financial institution. Subsequently, the bank reportedly granted Hoeneß a loan amounting to 15 million marks, for which Louis Dreyfus also acted as guarantor. Hoeneß refrained from declaring the proceeds of his gambling to the tax authorities. For this and other tax evasion offences, Hoeneß was sentenced to a total of three years and six month of imprisonment in 2014.

What’s next in the investigation on the 2006 World Cup Affair?

With regard to the tax evasion charges, it is likely that the case will either be closed (§§ 386, 389 AO) or – if enough evidence is collected against one or all three of the officials – the offenders will be charged for tax evasion in front of a court (§170 StPO). The outcome will depend on the evidence that comes to light during the preliminary investigation. As the FIFA “cultural programme” never took place, it is very obvious that the money was indeed used for a different purpose than indicated on the tax return and as such, the transaction should not have been deducible as an operating expense. Hence, proving tax evasion will most likely not be the public prosecutor’s office primary problem. Instead, the investigators have to find evidence tying Niersbach, Zwanziger and/or Schmidt to the crime. If the Sueddeutsche Zeitung is correct in stating that Niersbach signed the illegal tax return, it will be difficult for him to avoid prosecution.

In any case, it is to be expected that the 2006 World Cup Affair will occupy Fußballdeutschland for a while. The results of the investigation which the DFB confided to the law firm ‘Freshfields Bruckhaus Deringer are not expected tomorrow. Moreover, the independence of the investigation is questioned after a personal connection between a Niersbach employee and a lawyer from the aforementioned firm became public. FIFA, too, has several external lawyers investigating the claims. In addition, the Sportausschuss (sport committee) of the German Bundestag started to look into the matter. However, the impartiality of the sport committee may also be questioned as one of the Bundestag’s members also acts as the treasurer of the DFB and is tipped to become the successor of Niersbach. As a result, the final word regarding the use, whereabouts and purpose of the €6.7 million is not to be expected soon.

[1] Frankfurter Allgemeine Zeitung:” Das Schweigen des Wolfgang Niersbach“, 04.11.2015, http://www.faz.net/aktuell/sport/fussball/dfb-praesident-wolfgang-niersbach-schweigt-nach-dfb-razzia-13893806.html

[2] Idem 1

[3] To finance the reunification of Germany a surcharge is levied from all taxpayers on their PAYE, income, withholding and corporation tax. The solidarity surcharge is currently 5.5 % of the relevant assessment basis.

[4] However, misdemeanours can be fined with up to €50 000

[5] See also L.P. Feld, A.J.Schmidt & F, Schneider: “Tax Evasion, Black Activities and Deterrence in Germany: An Institutional and Empirical Perspective”, Annual Congress of the International Institute of Public Finance, Warwick, 2007.

[6] See also Christoph Bräuning: „Durchsuchung und Beschlagnahme durch die Steuerfahndung“, ROSE & PARTNER LLP, 2012, http://www.rosepartner.de/fileadmin/redaktion/Durchsuchung_Steuerfahndung__Christoph_Braeunig_01.pdf

Our International Sports Law Diary
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Conference - Empowering athletes’ human rights: Global research conference on athletes’ rights - Asser Institute - 23 October

Luxembourg calls…is the answer from Nyon the way forward? Assessing UEFA’s response to the ECJ’s ISU judgment - By Saverio Spera

The International Cricket Council and its human rights responsibilities to the Afghanistan women's cricket team - By Rishi Gulati

Women’s Football and the Fundamental Right to Occupational Health and Safety: FIFA’s Responsibility to Regulate Female Specific Health Issues - By Ella Limbach

[Call for Papers] - International Sports Law Journal - Annual Conference - Asser Institute, The Hague - 24-25 October 2024 - Reminder!

[New Event] Feminist theory and sport governance: exploring sports as sites of cultural transformation - 9 July -15:00-17:00 - Asser Institute

[Call for papers] - International Sports Law Journal - Annual Conference - Asser Institute, The Hague - 24-25 October 2024

[Online Summer Programme] - International sports and human rights - 22 - 29 May 2024 - Last spots!

[Call for Papers] Through Challenges and Disruptions: Evolution of the Lex Olympica - 20 September 2024 - Inland School of Business and Social Sciences

[New Publication] - The European Roots of the Lex Sportiva: How Europe Rules Global Sport - Antoine Duval , Alexander Krüger and Johan Lindholm (eds) - Open Access

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the

The 2006 World Cup Tax Evasion Affair in Germany: A short guide. By Gesa Kuebek

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