Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Last Call - ISLJ Conference 2025 - Twenty years of the World Anti-Doping Code in action - Asser Institute - 6-7 November

Dear readers,

You can still join us (in-person or virtually) on Thursday 6 November and Friday 7 November for the 2025 International Sports Law Journal (ISLJ) Conference at the Asser Institute in The Hague. This year's edition of the ISLJ conference will focus on assessing the first 20 years (2004-2024) of operation of the World Anti-Doping Code (WADC) since its entry into force in 2004. It will also discuss its future prospects, in light of the new version of the Code due to be adopted at the Busan Conference in December 2025, and the 10th Conference of the Parties to the International Convention against Doping in Sport, to be held in Paris from 20 to 22 October 2025.

The aim of the ISLJ conference is to take a comprehensive stock of the operation of the private-public transnational regulatory regime which emerged in the wake of the WADC. This regime is structured around a complex network of national and global institutions engaged in anti-doping work (WADA, NADAs, IFs, accredited laboratories) and guided by an equally complex assemblage of norms located at the global (WADC and the WADA Standards), international (UNESCO Convention against Doping in Sport), regional (Council of Europe Anti-Doping Convention), and national (various national anti-doping legislation) level. This makes for a fascinating and convoluted transnational legal construct in need of being studied, analysed and criticised by scholars. 

The conference will start with an opening speech delivered by Travis Tyggart, the CEO of USADA, who is a prominent anti-doping executive, but also a critical observer of the current operation of the world anti-doping system. It will be followed by a range of panels touching on the governance of the World anti-doping regime, the role of national institutions in its operation, the due process rights of athletes in anti-doping proceedings, the boundaries of athlete responsibility in doping cases, the main legal pillars (such as strict liability) underpinning of the WADC, and the enforcement of the WADC.


You will find the latest programme of the conference HERE


You can still register for in-person or online participation HERE


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

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

 

  

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

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

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

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

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

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

  

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

 

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

 

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

 

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

 

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

 

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

 

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


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

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

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

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

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

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

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

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

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

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

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

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


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


Check out the latest draft programme below and register HERE


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


 


Call for papers

20 years of the World Anti-Doping Code in Action

International Sports Law Journal Conference 2025

Asser Institute, The Hague

6 and 7 November 2025

 

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

 

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

 

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

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


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


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

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

Register HERE

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

Moderator: Marjolaine Viret (Université de Lausanne)

Speakers: 


Register HERE

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

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

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


Register HERE 


Speakers

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


Register HERE 

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

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

Register HERE

Drivers and effects of reform in transnational sports governance 

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

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

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

Download the full programme 

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

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

Register HERE

Speakers 


Register HERE


Asser International Sports Law Blog | The Diarra Ruling of the Tribunal of Charleroi: The New Pechstein, Bosman or Mutu?

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

The Diarra Ruling of the Tribunal of Charleroi: The New Pechstein, Bosman or Mutu?

Yesterday the sports law world was buzzing due to the Diarra decision of the Tribunal de Commerce du Hainaut (the Tribunal) based in Charleroi, Belgium. Newspapers were lining up (here, here and here) to spread the carefully crafted announcement of the new triumph of Jean-Louis Dupont over his favourite nemesis: the transfer system. Furthermore, I was lucky enough to receive on this same night a copy of the French text of the judgment. My first reaction while reading quickly through the ruling, was ‘OMG he did it again’! “He” meaning Belgian lawyer Jean-Louis Dupont, who after a string of defeats in his long shot challenge against FIFA’s TPO ban or UEFA’s FFP (see here and here), had [at least I believed after rushing carelessly through the judgment] manufactured a new “it”: a Bosman. Yet, after carefully re-reading the judgment, it became quickly clear to me that this was rather a new Mutu (in the sense of the latest CAS award in the ‘Mutu saga’, which I have extensively analysed on this blog and in a recent commentary for the new Yearbook of International Sports Arbitration) coupled with some reflections reminding a bit (but not really as will be explicated below) the Pechstein case.

In this blog, I will retrace briefly the story behind the case and then analyse the decision of the Belgium court. In doing so, I will focus on its reasoning regarding its jurisdiction and the compatibility of article 17(2) RSTP with EU law.

 

I.              The facts of the case

On 20 August 2013, the French footballer Lassana Diarra and the Russian top-tier club FC Lokomotiv Moscow (Lokomotiv) agreed on a four-year contract (Contract). Article 8 (3) of the Contract provided that in case Lokomotiv terminates the Contract for disciplinary reasons, Mr. Diarra would be liable for compensation amounting to EUR 20,000,000 (Compensation).  One year later, on 22 August 2014, Lokomotiv terminated the Contract due to Diarra's recurring failures to perform his obligations arising thereof. Lokomotiv relied on Article 8 (3) of the Contract and claimed the Compensation.

Less than a month later, Lokomotiv lodged a request for compensation with the FIFA Dispute Resolution Chamber (DRC) against Diarra. Diarra subsequently filed his counterclaim in which he asked for the payment of bonuses and wage arrears as well as the compensation amounting to the remuneration which would still have to be paid between August 2014 and 30 June 2017, the term provided for in the Contract. On 10 April 2015, the DRC rendered its decision ruling that Lokomotiv’s decision to terminate the Contract was justified (DRC Decision). Regarding the compensation due by Diarra, the DRC noted that Article 8 (3) of the Contract provided for the Compensation (amounting to EUR 20,000,000) claimed from Diarra. On the other hand, in case a compensation was due by Lokomotiv, Article 8 (5) of the Contract set a limit to three months of Diarra’s salary (approximately EUR 1,500,000). Taking into account the discrepancy, the DRC noted that the respective rights of the parties were completely disproportionate and the Contract should be disregarded. The DRC nevertheless decided that the consequences of the Contract's termination had to be assessed in light of Article 17 (1) of the FIFA Regulation for the Status and Transfer of Players (RSTP). In line with the said provision, the DRC decided that Diarra had to pay Lokomotiv the amount of EUR 10,500,000 for having repeatedly breached the Contract. Although this issue was not directly related to the case, the DRC pointed out that, following the termination of the Contract, Diarra did not immediately manage to find a new club so that Article 17 (2) RSTP (making a professional player and his new club jointly and severally liable for a compensation owed to a previous club) was in principle not applicable to the case. Furthermore, the DRC ruled that, having regard to the date of the Contract's termination and the time elapsed between that date and the issuance of the DRC Decision, Article 17 (2) would not apply in case Diarra finds a new club in the future.

Yet, during the period between 22 August 2014 and 10 April 2015, Diarra had attracted attention from several European clubs (e.g. Inter Milan, West Ham United, Celtic Glasgow and Sporting Charleroi). Negotiations, however, did not succeed for the reason that those clubs were afraid of being held jointly liable for a compensation which could have been potentially awarded by the DRC. On 19 February 2015, the Belgian football club Sporting Charleroi (Charleroi) offered Diarra a 15-month contract concerning the period between 30 March 2015 and 30 June 2016. This offer was, however, subject to the following conditions:

  1. Diarra is registered and qualified as a member of Charleroi by 30 March 2015 at the latest; and
  2. The governing bodies, Belgian Football Association (URBSFA) and FIFA, expressly confirm that Charleroi is not required to pay the compensation for which Diarra could be held liable at the end of the proceedings before the DRC.

On this second condition, Diarra and Charleroi demanded confirmation from FIFA and the URBSFA. Both governing bodies refused to adopt a concrete position with respect to the application of Article 17 (2) RSTP to the case at hand. On 27 March 2015, in light of the abovementioned replies obtained from FIFA and URBSFA, Diarra referred the case to the President of the Commercial Court of Brussels asking to order FIFA and URBSFA:

  1. To register and qualify him as a professional football player of Charleroi, thereby allowing him to play for the rest of the 2014/2015 season;
  2.  Not to apply Article 17 (2) and (4) RSTP to Charleroi.

No order had been delivered before the DRC Decision was issued. Furthermore, the DRC Decision confirmed that Article 17 (2) RSTP was not applicable to any new club which would hire Diarra in future. As a result, Diarra decided to withdraw his action from the Commercial Court of Brussels. However, he was not able to play as a professional player for Charleroi until the end of the 2014/2015 season. In July 2015, Diarra entered into a contract with the French top-tier club Olympique Marseille. This contract is still in force. 

Diarra also appealed against the DRC Decision before the CAS in Lausanne. On 27 May 2016, the CAS rendered its award by which it confirmed the DRC Decision. In the end, Diarra filed a lawsuit with the the Tribunal de Commerce du Hainaut. Diarra sued both FIFA and URBSFA for damages caused by not being able to exercise the status of a professional football player during the entire 2014/2015 season. Finally, on 19 January 2017, the Hainaut Commercial Tribunal – Charleroi division rendered the judgment analysed in this blog.            

 

II.            The decision of the Tribunal of Charleroi

A.    Does the Tribunal of Charleroi have jurisdiction?

FIFA (and the Belgium federation) argued that the Tribunal lacked jurisdiction for two (main) reasons: Diarra was bound by a CAS arbitration clause and the Belgium court is incompetent based on the Lugano Convention. Let’s turn to the Tribunal’s rebuttal of both objections.

1.     The inexistence of a CAS arbitration clause

FIFA argued that M. Diarra was bound, through his registration as a professional football player with the French Football Federation, by the CAS arbitration clause included in the Statutes of FIFA.[1] In particular it refers to Article 68 of the FIFA Statutes

The Tribunal finds that this provision poses difficult problems of interpretation. Especially, Article 68(3) FIFA Statutes does not stipulate that the prohibition to have recourse to ordinary courts entails necessarily an arbitration clause in favorem of the CAS. Instead, the Tribunal finds this lack of clarity in the wording of the provision to play in favour of the player. Thus, it concludes that the FIFA Statutes do not create an obligation for the player to turn to the CAS to solve this dispute.

The judges add that even if one considers the FIFA Statutes to be sufficiently clear and precise, the parties must have concluded an arbitral convention in the sense of Article 1680 of the Code Judiciaire Belge (Belgian Judicial Code). In this regard, FIFA needs to demonstrate through documentary evidence (not necessarily signed by the parties) the existence of an agreement fulfilling the law’s requirements of clarity and precision.[2] Yet, in the present case, FIFA was unable to show that it had any contractual links with Diarra. Hence, the judges concluded that there were no elements demonstrating that Diarra would have consented expressly or implicitly to arbitrate at the CAS disputes stemming from its relation with FIFA. Additionally, the Tribunal refers in footnote 7 to the evident contradiction between FIFA’s claim and the agreement signed with the European Commission to put an end in 2001 to the Commission’s investigation into the FIFA RSTP. Indeed, this agreement clearly stipulates that “arbitration is voluntary and does not prevent recourse to national courts”.[3] Finally, the Tribunal insists that any general prohibition (as the one included in FIFA’s statutes) to have recourse to national courts would be contrary to Ordre Public and, therefore, must be disregarded by the Tribunal.

Is it a new Pechstein? Hardly. FIFA is not relying on a specific arbitration clause included in its Statutes, nor does it refer to any arbitration clause included in the Statutes of the French Football Federation. In the Pechstein case (on ‘Pechstein’ see our blogs here and here), Claudia Pechstein was forced (as a condition of entry to the competitions of the ISU) to sign an arbitration agreement in favour of the CAS. In the Diarra case, the player never signed anything and the Tribunal just highlighted that the vague language included in the FIFA Statutes cannot be constructed as a sufficient legal basis for a general arbitration agreement binding all football players (and clubs) for all disputes involving FIFA or national federations around the globe.

2.     The competence of the Tribunal of Charleroi on the basis of the Lugano Convention

The second objection raised by FIFA and the URBSFA regarding the competence of the Tribunal is related to the Lugano Convention. In principle, as pointed out by the respondents, Article 2.1. Lugano Convention foresees that one should be sued in the courts of her domicile. Any derogation to this general rule is, in their view, limited to exceptional circumstances in which there is a particularly close linked between the dispute and the jurisdiction other than the one of the domicile of the respondent.

Yet, the Tribunal refers to Article 5.3. Lugano Convention, which stipulates that “in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur”. It held that this special competence is grounded on the existence of closed connecting factors between the dispute and the place where the damage occurred. The judges refer to the Mines de potasse and Shevill jurisprudence of the Court of Justice of the EU to conclude that the notion of harmful event covers both the place where the damage materialized and the place where the event occurred. In the present case, it entails that Diarra is not forced to lodge a complaint in Switzerland, where FIFA adopted the controversial regulation. Instead, he could also submit a complaint at the place where the damage was felt. More precisely in Belgium (and more specifically Charleroi) due to the missed opportunity to be employed by Sporting Charleroi.

This is (with other cases we have chronicled on this blog, see here and here) a good reminder that FIFA’s regulations, as long as they have damaging effects outside of Switzerland, are easily subjected to challenges in the EU Member States. In particular due to a potential incompatibility with EU free movement and competition law.

B.    The compatibility of article 17(2) FIFA RSTP with EU law?

The core of the substantial evaluation of the case plays out mainly around the question of the compatibility of article 17(2) FIFA RSTP with EU law. Unfortunately for the European Sports Law geek, but reasonably in the context of the factual construction of the case, the Tribunal did not pick on the request of Diarra’s lawyer to send a preliminary reference to the CJEU regarding the compatibility of article 17(1) FIFA RSTP with EU free movement law. [4]

Instead, the Tribunal focused on the interpretation (at least until April 2015) by FIFA (and the URBSFA) of article 17(2) FIFA RSTP. Indeed, it refers to the legislative history of the FIFA RSTP and in particular the EU Commission-FIFA agreement to strongly affirm that “there is no doubt that the European Commission would have never given its green light to such a system, which boils down in fine to preventing a worker dismissed by his employer – even if it is due to his behaviour - to find a new job”.[5] To further support this argumentation it refers directly to the CAS award rendered in the latest episode of the ‘Mutu saga’. In that case, the CAS clearly affirmed that the interpretation provided by the FIFA DRC, insofar as it extends the applicability of article 17(2) FIFA RSTP to players dismissed by their clubs on the basis of their behaviour, is contrary to EU law and the Bosman jurisprudence. Thus, the Tribunal concludes that the application of article 17(2) FIFA RSTP supported by the defendants in the present case was contrary to the freedom of movement of workers. Henceforth, the faulty behaviour of FIFA was established.

Interestingly, and this is the more original aspect of the decision, the Tribunal found that the URBSFA should also be deemed at fault for having implemented the rule on FIFA’s behalf. The national federation cannot hide behind its duty to implement FIFA regulations, especially because since 21 January 2015 (meaning before it opposed the move to Sporting Charleroi) it should have been aware of the decision of the CAS (here the Tribunal is a bit unfair with the URBSFA because the full text of the award was not published until March 2015, and until then it was impossible for the URBSFA to clearly assess the CAS’ reasoning). Moreover, the Tribunal rejects the objection raised by the URBSFA that the Russian federation would not have issued an International Transfer Certificate. Instead, the judges held that “when the contract is terminated by the club, the player must have the possibility to sign a new contract with a new employer, without restrictions to his free movement”. The Tribunal added [and this is the key part that had me believe in a new Bosman for a minute ;)]

“Allowing, like the RSTP seems to do, a federation or association to which the former club belongs […] not to deliver an ITC if there is a contractual disputes between the former club and a player that has been dismissed (and who has not taken the initiative of breaching his contract) and who has concluded (or wishes to conclude) a new contract in another country, is equivalent to requiring the new club to pay to the former club the compensation requested from the player, which is akin to imposing to the new club to pay a transfer fee to the former club to recruit a player who in fact is out of contract. This is exactly the practice deemed contrary to EU law in the Bosman case.”[6]

The scope of this paragraph could have been way broader if the Tribunal had not included the “who has been dismissed” part. Indeed, it seems to exclude situations where the player decides to leave his club and, thus, preserves the possibility to hold the new club accountable for compensation due by the player to his former club for having terminated his contract.


Conclusion: Interpreting the FIFA RSTP with a lot of help from EU law

This case matters, not so much for Diarra, who has secured a meagre EUR 60 001 in damages (and not the EUR 6 million announced everywhere) plus a bit more if his lawyers manage to demonstrate a substantial loss of opportunity from not having played with Sporting Charleroi (which, with all due respect, should prove rather difficult), not so much for its substantial solution because the CAS had come to a similar conclusion in its Mutu award from 2015, not so much either for its arbitration dimension as the Tribunal’s considerations regarding the absence of an arbitral agreement are not really surprising (or new for that matter). No, its importance lies in the reaffirmation of the need to read the RSTP in the light of EU law and to interpret it with the jurisprudence of the CJEU in mind and the agreement with the EU Commission on the table. This decision is laying further ground for broader challenges to the RSTP on the basis of EU law. For example, I do not see where one can find in the EU Commission-FIFA agreement the endorsement of a joint liability of the new club and a player for damages incurred by the latter when terminating his contract with his former club. Thus, the entire article 17(2) FIFA RSTP is build on shaky legal grounds, and if one pursues the logic of the Tribunal until the end there is no reason why it should not be deemed contrary to the EU free movement rights of players.


[1] Jugement du Tribunal de Commerce du Hainaut, division Charleroi, A/16/00141, 19 January 2017, at paras 19-21.

[2] Ibid, at para.21.

[3] Ibid.

[4] Ibid, at para. 27.

[5] Ibid, at para. 28.

[6] Ibid.

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