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: 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...

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...

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

It’s been a long wait, but they’re finally here! On Monday, the European Commission released its decisions regarding State aid to seven Spanish professional football clubs (Real Madrid on two occasions) and five Dutch professional football clubs. The decisions mark the end of the formal investigations, which were opened in 2013. The Commission decided as follows: no State aid to PSV Eindhoven (1); compatible aid to the Dutch clubs FC Den Bosch, MVV Maastricht, NEC Nijmegen and Willem II (2); and incompatible aid granted to the Spanish football clubs Real Madrid, FC Barcelona, Valencia CF, Athletic Bilbao, Atlético Osasuna, Elche and Hércules (3).

The recovery decisions in particular are truly historic. The rules on State aid have existed since the foundation of the European Economic Community in 1958, but it is the very first time that professional football clubs have been ordered to repay aid received from (local) public authorities.[1] In a way, these decisions complete a development set in motion with the Walrave and Koch ruling of 1974, where the CJEU held that professional sporting activity, and therefore also football, is subject to EU law. The landmark Bosman case of 1995 proved to be of great significance as regards free movement of (professional) athletes and the Meca-Medina case of 2006 settled that EU competition rules were equally applicable to the regulatory activity of sport. The fact that the first ever State aid recovery decision concerns major clubs like Real Madrid, FC Barcelona and Valencia, give the decisions extra bite. Therefore, this blog post will focus primarily on the negative/recovery decisions[2], their consequences and the legal remedies available to the parties involved.[3]

The launch of the formal investigations

The three Commission decisions to launch formal State aid investigations into alleged aid granted to Spanish professional football clubs were all made public on 18 December 2013. The first investigation concerned “possible privileges regarding corporate taxation of Real Madrid, FC Barcelona, Athletic Bilbao, and Atlético Osasuna. These four clubs are exempted from the general obligation for professional football clubs to convert into sport limited companies. The effect of this exemption is that these clubs enjoy a preferential corporate tax rate of 25% instead of 30% applicable to sport limited companies.” The second investigation involved Real Madrid specifically, and was opened after the Commission expressed its doubts over “a very advantageous real property swap with the City of Madrid. This swap was based on a re-evaluation of a plot of land at a value of €22.7 million, instead of its earlier supposed value in 1998 of €595 thousand”. The third investigation dealt with three clubs from the autonomous region of Valencia: Valencia CF, Elche FC and Hércules CF. In this case, the Commission decided to investigate State guarantees by the Valencia Institute of Finance for a bank loans of (1) €75 million to Valencia CF; (2) €14 million to Elche CF; and (3) €18 million to Hércules CF. The Real Madrid real property swap case and the Valencia CF case have previously been analyzed on this blog (here, here and here).[4]

Purely based on the decisions to open formal investigations, there was little doubt as to whether the criteria of Article 107(1) were fulfilled[5]: The football clubs in question received a selective economic advantage deriving from a measure taken by public authorities and which involved a transfer of State resources. This advantage has affected trade and threatens to distort the internal market. What remained unclear was whether the Member States could convince the Commission to declare the State aid compatible under Article 107(3)c) TFEU,[6] and, if not, how high the recovery would be. The complexity of the Real Madrid case in particular led to uncertainty as to whether a possible recovery decision would merely imply Real Madrid having to pay a lump sum to the city of Madrid, or whether one or more land transactions would have to be undone.[7]

Last but not least, it should be kept in mind that ordering recovery of State aid is a politically sensitive decision. Given that State aid investigations are always directed at the Member State (with limited room for interested party intervention, including the beneficiary), such proceedings are inherently political. Furthermore, from analyzing Commission speeches and policy documents, such as the recently published Report on Competition Policy 2015, one will reach the conclusion that actively enforcing EU competition law, including State aid law, in sport, is not a Commission priority. Any recovery decision in the professional sport sector, therefore, would need to serve as a blueprint for future cases: it should prevent other public authorities to grant State aid to professional sport clubs in contravention of State aid rules.

The Commission’s press release ordering the State aid recovery

Though the press release does not provide all the facts, it includes many interesting elements. First of all, the privileges regarding corporate taxation of Real Madrid, FC Barcelona, Athletic Bilbao, and Atlético Osasuna were found to be incompatible State aid, and each club has to repay between €0 and €5 million depending on what the Spanish authorities determine in the recovery process. The press release further states that Spain adjusted its legislation on corporate taxation to end this discriminatory treatment. This last point is especially important, because it demonstrates that the “bite” of State aid could exceed a mere recovery order. Simply opening a formal investigation into this issue has made the Spanish authorities reconsider its corporate taxation and adjust it accordingly to prevent future State aid being granted. Moreover, tackling unfair corporate tax advantages has been a priority for the Commission for the last few years.[8]

As regards Real Madrid’s advantageous real property swap with the City of Madrid, the Commission concluded that the football club was only entitled to a compensation of €4.3 million, so that Real Madrid obtained an advantage of €18.4 million. In other words, the city of Madrid needs to recover €18.4 million from Real Madrid. Although this calculation seems rather straightforward, it should be noted that the press release only refers to the re-valuation of one of the lands transferred. This means that only one land transaction was found to be incompatible with EU State aid rules, while all the land transactions remain valid.

In the third and final decision the Commission determined that Valencia, Hércules and Elche will need to repay €20.4 million, €6.1 million and €3.7 million respectively. The Commission acknowledged that the three clubs were in financial difficulties when the public institution Valencia Institute of Finance, placed a public guarantee on bank loans provided to the football clubs, but did not find this difficulties sufficiently severe to declare the aid compatible with the internal market.[9] The fact that the clubs paid no adequate remuneration for the guarantees, and that the State financing was not linked to any restructuring plan, made the Commission decide to order the recovery of that aid. The arguments brought forward by the Spanish authorities defending the State aid measure will not be known until the non-confidential version of the decision is published in a few months. What we do know is that at the time the formal investigation was launched in December 2013, the Spanish authorities had not communicated any restructuring or liquidation plan to the Commission, nor were any of the conditions met for authorizing restructuring aid under the Community Guidelines on State aid for rescuing and restructuring firms in difficulty, even though the three clubs were in severe financial difficulties.[10]

The consequences of the negative and recovery decisions

It is important to make a distinction between negative decisions and recovery decisions.[11] They are, in fact, two separate decisions. As can be read in Articles 9(5) and 16(1) of the State Aid Procedural Regulations 2015/1589, the negative decision precedes the recovery decision. Under a negative decision, the Commission decides that the aid shall not be put into effect for not being compatible with the internal market. Any plans to grant future State aid under that measure will automatically be halted. The recovery decision can only be granted if the aid, or part of the aid, has been granted in the past, such as in the cases at hand.[12] The decision orders the Member State concerned to take all necessary measures to recover the aid from the beneficiary.[13] As can be read in the Commission’s Recovery Notice, the main objective of the recovery order is to re-establish the situation existing before the aid was unlawfully granted.[14] The recovery, which is subject to a limitation period of 10 years[15], “shall be effected without delay and in accordance with the procedures under the national law of the Member State concerned”.[16] This means that it is up to Spain to decide on the procedure of how and when it recovers the aid, in accordance with its own national law.

Since the negative and recovery decisions are addressed to Spain, it may institute proceedings against the negative decision and/or the recovery decision, pursuant to Article 263 TFEU. The Spanish central government has not yet announced its position regarding the decisions or whether it plans to launch an appeal. The city of Madrid and the autonomous region of Valencia on the other hand, have both declared that they wish to recuperate the State aid granted to the respective football clubs.[17] Article 263 TFEU also allows any natural or legal person to challenge a Commission decision that is of direct and individual concern to them. In other words, now that for example Real Madrid is ordered to repay €18.4 million to Spain, it is directly affected by the recovery decision and has already publicly stated that it will initiate proceedings against the Commission.

The General Court shall have jurisdiction to hear and determine at first instance actions referred to in Article 263 TFEU. A decision by the General Court may be subject to a right of appeal to the Court of Justice.[18] Contrary to the General Court, the Court of Justice could decide, under Article 278 TFEU, that the recovery order should be suspended.

Conclusion

The negative and recovery decisions could have consequences for the relationship between the Spanish State (particularly local governments) and professional football. The practices now condemned by the European Commission are known to have been taking place for decades. A recently published report by Transparency International, for example, discusses how Spanish football clubs, in collaboration with the local governments, would turn to urban speculation with the objective of making easy money. The report used an agreement between the city of Murcia and its local football club Real Murcia as an example. The Real Madrid case, which is also about urban speculation, is another example of this standardized practice in Spain. The fact that the Commission orders recovery of aid from the richest and most successful club in Spain, should send a message to the smaller clubs and cities that urban/ land agreements between clubs and public authorities are not unconditionally accepted.

In addition, the decisions will especially be tough for Valencia, Hércules and Elche, three clubs known to be in financial difficulties already. Valencia has already announced that it “reserves the right to appeal to the European Court of Justice”, but one wonders whether it is worth the risk, considering the legal fees attached to such an appeal. On the other hand, the public authorities will realize that granting State aid to professional football clubs can bounce back hard, if it is not granted pursuant an objective of general interest and in a transparent manner. Furthermore, rescue aid, such as in Valencia, cannot be granted without implementing a restructuring plan at the same time. A proper restructuring plan will help limit the possibility of the club returning to financial difficulties in the future. Finally, clubs too must be aware that they must live “within their own means” and that they cannot always depend on local public institutions to bail them out of there financial troubles.

[1] For the discussion on why there was (and still is) so little State aid enforcement in the professional sport/football sector, see Ben Van Rompuy and Oskar van Maren, “EU Control of State Aid to Professional Sport: Why Now?” In: “The Legacy of Bosman. Revisiting the relationship between EU law and sport”, T.M.C. Asser Press, 2016.

[2] The distinction between a negative decision and a recovery decision will be explained further below.

[3] A specific blog post on the State aid decision concerning the Dutch football clubs will be made shortly.

[4] For an even more detailed (factual) analysis of the Real Madrid case, see: Oskar van Maren, “The Real Madrid case: A State aid case (un)like any other?” 11 Competition Law Review 1:83-108.

[5] Even though Real Madrid has always insisted the real property swap was not economically advantageous, since the value of the real property was calculated in accordance with market conditions. Supra note 4.

[6] Under this provision, State aid that facilitates the development of certain activities or of certain economic areas, where such aid does not adversely affects trading conditions to an extent contrary to the common interest, may be considered compatible with the internal market.

[7] It is a matter of discussion whether the Real Madrid case concerns only the land transaction of July 2011, or whether a second land transaction of November 2011 should be included in the same investigation. Supra, note 4.

[8] Report from the Commission COM(2016) 313 of 15 June 2016 to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions – Report on Competition Policy 2015, pages 12-13.

[9] Contrary to the State aid granted to FC Den Bosch, MVV, Willem II and NEC, where the Commission determined that the aid was granted in line with the 2004 Guidelines on State aid for rescuing and restructuring firms in difficulty.

[10] Commission decision of 18 December 2013 SA.36387 – Alleged aid in favour of three Valencia football clubs, para.44.

[11] A third option, as stipulated in Article 9(3) of the State aid Procedural Regulation, is the positive decision. This is a decision where the Commission decides that the aid is compatible with the internal market. The decision allowing the aid to the Dutch clubs is an example of a positive decision. Challenging a positive decision under Article 263 TFEU is also possible for the Member State concerned, should it wish to do so.

[12] The aid is, for example, not granted yet when the Member State simply notifies the Commission of its plan grant State aid. Should the Commission declare the plan to grant State aid incompatible with the internal market, then there will be no need to order recovery as well.

[13] The Commission, however, can decide against a recovery order if it believes that such a recovery would be contrary to a principle of Union law. This gives the Commission the possibility to declare a State aid measure incompatible with EU law on the one hand, but not order recovery of that aid on the other.

[14] Notice from the Commission (2007/C 272/05) of 15 November 2007 Towards an effective implementation of Commission decisions ordering Member States to recover unlawful and incompatible State aid, point 2.2.

[15] Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules fort the application of Article 108 of the Treaty on the Functioning of the European Union, Article 17(1).

[16] Ibid., Article 16(3).

[17] It is worth mentioning that at the time the State aid was granted, the Spanish Conservative Party, PP, was in power in Madrid as well as in the autonomous region of Valencia. These two local governments are nowadays formed by opposition parties. On the other hand, the PP is still the biggest political party at national level.

[18] Consolidated version of the Treaty on the Functioning of the European Union C 326/47 of 26 October 2010, Article 256(1).

loek Jorritsma
7/7/2016 12:16:21 PM |

As the complainant in the Dutch cases I was in discussion with the supporters of MVV on their website. April 2013 I informed them about the restructuring aid. When Maastricht would have chosen to ask the EC permission to restructure MVV the same way Arnhem did in the Vitesse situation, there would have been no problem at all. At that occasion I advised (via the supporters) Maastricht to answer the EC in their probe to handle in that way. The EC decided in that way. Very elegant solution. I expect these criteria will apply in the future in any case with star aid support in professional sport.
- Oskar van Maren
  7/7/2016 12:42:46 PM |
  
  Dear Loek,
  You're absolutely right. Proper restructuring plans that are notified in advance to the Commission would probably avoid most potential State aid problems. Let's see whether this week's decisions trigger a change in local governments and sport clubs mentality regarding public funding in the sector.

loek Jorritsma
7/7/2016 4:02:03 PM |

Forgot to tell that mr. Almunia asked me, in reply on my email of 9 May 2010 CP 63/80, to inform him about my findings concerning Real Madrid and other football clubs in Europe and illegal state aid. Which I did from that moment on. Any suggestion he was delaying this process is therefore false. I know, because he (of course by his staff) was always in contact with me and willing to come to the best decision. That takes time.

Eindhoven
7/8/2016 10:30:11 PM |

It would be interesting to know whether Mr. Jorritsma now understands that his cooperation with Mr. Almunia and the
baseless crusade against Dutch football has costed a lot of money and resources to the EU taxpayers at a time of crisis in which those resources where needed elsewhere.

Five cases dismissed out of five and still trying to lecture us... If he or Mr. Almunia had just read the guidelines for restructuring companies before running amok.

If the EU was a well functioning Institution, Mr. Jorritsma should be made responsible for the costs for the EU and for the clubs & municipalities (reputation, legal, etc.) that had been falsely accused.

Mr. Jorritsma, will you please apologise to the EU taxpayer for your reckless behaviour?

loek Jorritsma
7/11/2016 10:31:18 AM |

On the contrary. Now it is clear that state aid is only allowed under very strict circumstances. Those of restructuring aid have to be met. And that includes a whole set of obligations to ensure the European (nut just the Dutch) taxpayers are no longer the safeguards of reckless politicians and club owners still paying overprivileged players too much money. The EC was very elegant towards the Dutch clubs to define their star aid afterwards as restructuring aid. The EC ' forgot' to ask their track record on state aid in the past. If the EC would have done so, the decision would have been negative because those conditions would not be met. The cases were not dismissed, they were saved. The Spanish cases learn the European clubs and municipalities the limits. They all have to stick to that and all the accountants concerned now have to report about those finances they are whether or not in compliance with the rules. That is profit, proud to have made that contribution to the future tax payers.

loek Jorritsma
7/11/2016 10:59:17 AM |

By the way mr. Eindhoven. Interesting to see your post is anonymus, or is your real name Eindhoven? Your suggestion I have to pay the costs is only fair. As fair it would be to gain the profits. That will make me a rich man. See the penalties for the Spanish clubs. But your suggestion as also very unfair. It will make any whistleblower to a calculated naked-short-seller. Let us leave that to the casino-players. Those people who have put the whole of Europe in crisis.

Eindhoven
7/11/2016 2:10:14 PM |

Oh dear, no apologies, no remorse and more accusations against the EC and the municipalities/clubs involved.

The Restructuring guidelines had been published already in 2004 and you should have read them carefully before wasting EU resources. It was clear to any one, apparently other than you, that these regulations existed and that these conditions had to be met (as it was the case in the Dutch cases).

The EC was not "elegant", it has simply applied the existing rules correctly (those rules that you should have read a few years ago). If you believe that further restructuring aid had already been provided to the Dutch clubs and that the EC has failed to take this into consideration, you should simply, rather than critizising the EC, go ahead and inform them. They would surely welcome your evidence, if any. Until you do that, please stop bringing the EU institutions into disrepute by suggesting that "elegant" solutions have been adopted. You are accusing the EC of "forgetting" things just like unsuccessful footballers blame the referee for their own shortcomings. Could you please at least provide any example of any previous "aid" that has been "forgotten" by the EC in its "elegant" decisions?

Please also stop bragging and be more modest, you have not rescued a single euro for any taxpayer. Your only contribution is five dismissed cases and as a result EU resources (funded by the taxpayer) have been unnecessarily wasted. Not to mention those of the municipalities that had been falsely accused.

You say that the cases "learn" but it seems that you have not learned anything about your failures (five out of five). The result is zero recovery and huge costs in the form of wasted resources at EU, municipality and club level. You have created your own miniature crisis. Rather than accusing the EC without providing any evidence and continuing to damage the reputations of those clubs and municipalities, you should be apologising to the taxpayer. It is never too late.

loek Jorritsma
7/11/2016 3:20:11 PM |

There was no notification and there was no plan of restructuring the organization before state aid was given. That plan did not exist. In such a plan, and I quote:
" 36. Het herstructureringsplan moet de omstandigheden beschrijven die tot de moeilijkheden van de onderneming hebben geleid, zodat kan worden nagegaan of de voorgestelde maatregelen passend zijn. Het houdt onder meer rekening met de actuele situatie en de verwachte ontwikkeling van vraag en aanbod op de relevante productmarkt, aan de hand van best-case-, worst-case- en neutrale scenario's, alsmede de specifieke sterke en zwakke punten van de onderneming. Het stelt de onderneming in staat de overgang te maken naar een nieuwe structuur die haar uitzicht biedt op levensvatbaarheid op lange termijn en haar in staat stelt op eigen benen te staan.
37. Het herstructureringsplan moet zorgen voor een omslag waardoor de onderneming, nadat de herstructurering is voltooid, in staat is al haar kosten te dekken, met inbegrip van afschrijvingen en financiële lasten. Het verwachte rendement op eigen vermogen dient voldoende te zijn om de geherstructureerde onderneming in staat te stellen op eigen kracht op de markt te concurreren. Wanneer de moeilijkheden van de ondernemingen aan een gebrekkige corporate governance zijn te wijten, dienen de nodige aanpassingen te worden doorgevoerd."
When such a plan does not exist you have to decide how to continu your probe.
From the Vitesse case every organization could have learned.
You seem to forget I put the word ' forget' between brackets, that is on purpose.
You seem also to forget there was no decision from the EC in professional football clubs at all. From now on these rules must be met at the beginning of delivering state aid, not at half time. And the probe was not only in the Netherlands. In your vocabulary, which I denounce, in Spain there was a 5 out of 5 win. And a lot of money (in my opinion not enough) regained for the tas payer. How about that? And that is for the whole of Europe.

loek Jorritsma
7/11/2016 4:16:31 PM |

M.i. kan het nu ook in het Nederlands.
Wat betreft anonimiteit geen antwoord. Dan de vraag wat of er voorafgaand aan het besluit allemaal duidelijk moest zijn:
" 72. Reddingssteun is een eenmalige operatie die in hoofdzaak is bedoeld om de exploitatie van een onderneming voort te zetten gedurende een beperkte periode waarin de toekomst van de onderneming kan worden geëvalueerd. Het dient echter niet mogelijk te zijn de herhaalde toekenning van reddingssteun maatregelen toe te staan waarmee enkel de status quo wordt bestendigd, het onvermijdelijke wordt uitgesteld en tegelijkertijd de economische en sociale problemen op andere, meer efficiënte producenten of op andere lidstaten worden afgewenteld. Daarom mag reddingssteun slechts eenmaal worden toegekend. In overeenstemming met ditzelfde beginsel mag ook herstructureringssteun slechts eenmaal worden toegekend, om te voorkomen dat ondernemingen die enkel dankzij herhaalde staatssteun kunnen overleven, ten onrechte steun ontvangen. Ten slotte mag, wanneer reddingssteun wordt toegekend aan een onderneming die al herstructureringssteun heeft ontvangen, worden aangenomen dat de moeilijkheden van de begunstigde onderneming een terugkerend probleem zijn en dat herhaalde overheidsmaatregelen aanleiding geven tot vervalsing van de mededinging waardoor het gemeenschappelijk belang wordt geschaad. Dergelijke herhaalde overheidsmaatregelen dienen niet te worden toegestaan.
73. Wanneer een voornemen tot het verlenen van reddings- of herstructureringssteun bij de Commissie wordt aangemeld, moet de lidstaat aangeven of de betrokken onderneming in het verleden reeds reddings- of herstructureringssteun heeft ontvangen, met inbegrip van vóór de datum van toepassing van de onderhavige richtsnoeren verleende steun en van niet-aangemelde steun (1). Indien dit het geval is en wanneer minder dan tien jaar is verstreken sinds de toekenning van de reddingssteun, het aflopen van de herstructureringsperiode of de beëindiging van de tenuitvoerlegging van het herstructureringsplan (naargelang welke van deze gebeurtenissen het meest recent is), staat de Commissie geen verdere reddings- of herstructureringssteun toe, behalve in de volgende gevallen:
a) wanneer herstructureringssteun volgt op de toekenning van reddingssteun als onderdeel van één enkele herstructureringsoperatie; of
b) wanneer reddingssteun onder de voorwaarden van punt 3.1.1 werd toegekend en op deze steun geen door de Staat gesteunde herstructurering volgde, indien:
i) redelijkerwijs mag worden aangenomen dat de onderneming na de toekenning van reddingssteun op de lange termijn levensvatbaar zal zijn, en
ii) na ten minste vijf jaar nieuwe reddings- en herstructureringssteun noodzakelijk wordt wegens onvoorzienbare omstandigheden (2) die de onderneming niet zijn toe te rekenen, of
c) in uitzonderlijke en onvoorzienbare omstandigheden die de onderneming niet zijn toe te rekenen.
In de onder b) en c) bedoelde gevallen kan de vereenvoudigde procedure van punt 3.1.2 niet worden gebruikt."

Vraag nu naar het track record van alle begunstigde clubs in de afgelopen 10 jaar, kijk ook naar de staatssteun die aan alle clubs is verleend in de afgelopen jaren en die kunnen worden geschaard onder deze noemer. Dan zal het duidelijk zijn dat voor alle clubs in ons land deze bepalingen vanaf nu gelden en dat de accountants die de Jaarrekeningen moeten goedkeuren hier van uit dienen te gaan.

Eindhoven
7/11/2016 4:16:51 PM |

This is incorrect since, as you know, there were plans for each of the clubs and the EC had already ruled a long time ago that professional sport clubs are undertakings for EU law purposes, including State aid whether any recovery decision had already been taken in that area or not. Please do not try to claim credit for reinventing the wheel.

I insist that the end result of your actions is five out of five failures, huge amounts of public resources being wasted, reputational damage (with municipalities suing the EC and the EC backtracking after costly in-depth investigations), zero money recovered and a few interviews given by yourself.

More importantly, accusing the Commission of "forgetting" (with or without brackets) relevant issues when adopting a decision is a very serious matter and you have failed to provide a single example of that previous aid. You should either provide some evidence or admit that, contrary to your accusation, the Commission did not "forget" anything. If you can prove that the EC "forgot" any aspect (previous aid or anything else), I am of course very happy to admit that you were right but I seriously doubt it.

Eindhoven
7/12/2016 5:14:27 PM |

It seems that Mr. Jorritsma is very happy to copy and paste paragraphs of the Restructuring guidelines (if he had just read them a few years ago...) but has failed to provide a single example of the previous aid that, according to him, the EC "forgot" to consider in its Dutch decisions.

What a complete waste of taxpayers' money and EU resources and now blaming the EC without providing a single example

Just compare Mr. Jorritsma's five out of five DIY fiasco with the very efficient job performed by FC Bayern on the Spanish cases:

www.espnfc.co.uk/.../bayern-munich-made-eu-complaint-over-state-aid-spanish-mep

loek Jorritsma
7/12/2016 5:48:30 PM |

Dear mr. Eindhoven. I love copy paste. It will bring the audience the real texts. And I also like to do my homework. For example reading de Groene Amsterdammer about state aid in the last decade; it is huge. And I expect my opponents to do their homework to. And find out whether or not the Dutch clubs have received aid from their municipalities during the period I mentioned. And google my name and Real Madrid. See the news in Reuter form 2013. Here copy pasted.

Life | Fri Dec 20, 2013 10:36am GMT Related: SPORT
EU state aid probe 'not anti-Spain campaign'
MADRID | BY IAIN ROGERS
A European Commission probe into possible illegal state aid to seven Spanish football clubs including Real Madrid and Barcelona is not part of a malicious campaign against Spain, one of the complainants said on Friday.

Loek Jorritsma, a retired senior policy adviser at the Netherlands ministry of sports, made a formal complaint in 2010 highlighting what he believed was illegal aid to clubs in his native Holland as well as to Real.

The Commission opened an investigation into five Dutch clubs, including PSV Eindhoven, in March and launched a separate probe into Real, Barca, Athletic Bilbao, Osasuna, Valencia, Elche and Hercules on Wednesday.

The announcement of the Spanish investigation prompted a furious response, with some claiming it was driven by envy at the world and European champions' recent successes.

Real president Florentino Perez labelled it "a campaign against Spanish football" and said the world's richest club by income had done nothing wrong, while secretary of state for sports Miguel Cardenal complained of "damage to Spain's image".

Jorritsma said his motivation was to identify possible instances of illegal state aid to professional clubs wherever they occurred in Europe.

"It's a campaign on behalf of competitive balance, against foul play and for a level playing field, which is disturbed by state aid," Jorritsma told Reuters.

"I treat the Dutch clubs and all European clubs the same way," the 70-year-old added.

"It is state aid and they are professional organisations like banks or any other enterprise.

"It's not culture and there is no law that gives you any freedom to jeopardise the market."

Jorritsma is not the only complainant in the Spanish case and the EU has said a representative of "several European clubs" also filed a formal objection.

The Commission has declined to reveal their identity, saying it was a confidential matter.

TAKING RESPONSIBILITY

Jorritsma is happy to go on the record, however.

"I am a former civil servant and I don't like to do things anonymously and I take responsibility for the things I do," he said.

Representatives of some of the Dutch clubs he denounced had even threatened him with physical violence, he added.

"I explained my reasons to them and in the end they all thought I was very brave.

"Because of my professional background I know how to formulate things."

One of the areas Jorritsma highlighted is a property deal Real struck with the City of Madrid in 2011 that the Commission said appeared "very advantageous".

The swap deal was based on a re-evaluation of a plot of land at a value of 22.7 million euros ($31 million), instead of its earlier supposed value in 1998 of 595,000 euros.

The Spanish investigation, which could take many months to conclude, is also examining whether Real, Barca, Bilbao and Osasuna benefited from special tax treatment.

Valencia, Elche and Hercules allegedly received illegal financial assistance from the regional government in the form of loans and bank guarantees.

All deny wrongdoing and the Spanish government has said it would fight to prevent the clubs being forced to pay back any aid deemed to be illegal.

(Editing by John O'Brien)

Eindhoven
7/12/2016 7:17:52 PM |

Ha ha, the article is really funny: "I was very brave", "I know how to formulate things", "I take responsibility for the things I do"... wow!

We can either trust you or a Spanish MEP with knowledge of the matter who has disclosed that it was FC Bayern who initiated the complaints but it is of course unlikely that Rumenigge will self-glorify himself in an interview. Plus anyone following the Spanish cases knows that they were brought to the Commission in 2009. What did you exactly complain about in 2010? Please explain. Yet again claiming credit for reinventing the wheel?

I insist that the result of your actions is five out of five failures, huge amounts of public resources being wasted, reputational damage (with municipalities suing the EC and the EC backtracking after costly in-depth investigations), zero money recovered and a few self-glorifying interviews given by yourself.

And even worse than that, still awaiting a single example of the previous aid to the Dutch clubs that the Commission, according to your accusation, "forgot" about. A single example would be sufficient, great opportunity to take responsibility for your accusation.

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loek Jorritsma

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