Editor’s Note: Shervine Nafissi (@SNafissi) is a Phd Student in sports law and teaching assistant in corporate law at University of Lausanne (Switzerland), Faculty of Business and Economics (HEC).
Introduction
The factual background
The dispute concerns a TPO contract entitled “Economic Rights Participation Agreement” (hereinafter “ERPA”) concluded in 2012 between Sporting Lisbon and the investment fund Doyen Sports. The Argentine player was transferred in 2012 by Spartak Moscow to Sporting Lisbon for a transfer fee of €4 million. Actually, Sporting only paid €1 million of the fee while Doyen Sports financed the remaining €3 million. In return, the investment company became the owner of 75% of the economic rights of the player.[1] Thus, in this specific case, the Portuguese club was interested in recruiting Marcos Rojo but was unable to pay the transfer fee required by Spartak Moscow, so that they required the assistance of Doyen Sports. The latter provided them with the necessary funds to pay part of the transfer fee in exchange of an interest on the economic rights of the player.
Given that the facts and circumstances leading to the dispute, as well as the decision of the CAS, were fully described by Antoine Duval in last week’s blog of Doyen vs. Sporting, this blog will solely focus on the decision of the Swiss Federal Supreme Court (“FSC”) following Sporting’s appeal against the CAS award. As a preliminary point, the role of the FSC in the appeal against CAS awards should be clarified.More...
At
the end of December 2015, the CAS decided on a very public contractual
dispute between Sporting Clube de Portugal Futebol SAD (Sporting) and
Doyen Sports Investments Limited (Doyen). The club was claiming that
Doyen’s Economic Rights Participation Agreement
(ERPA) was invalid and refused to pay Doyen’s due share on the transfer
of Marcos Rojo to Manchester United. The dispute made a lot of noise
(see the excellent coverage by Tariq Panja from Bloomberg here, here and here)
as it was the first TPO case heard by the CAS after FIFA’s ban. Yet,
and it has to be clear from the outset, the case does not affect the
legality of FIFA’s TPO ban; it concerned only the compatibility of
Doyen’s ERPA with Swiss civil law. The hearing took place in June 2015,
but the case was put under a new light by the football leaks revelations unveiled at the end of 2015 (see our blog from December 2015). Despite these revelations, the CAS award favoured Doyen, and was luckily for us quickly made available on the old football leaks website.
This blog will provide a commentary of the CAS decision. It will be
followed in the coming days by a commentary by Shervine Nafissi on the
judgment, on appeal, by the Swiss Federal Tribunal. More...
On 12 January 2017 UEFA published its eighth club licensing benchmarking report on European
football, concerning the financial
year of 2015. In the press release that accompanied the report, UEFA proudly announced
that Financial Fair Play (FFP) has had a huge positive impact on European
football, creating a more stable financial environment. Important findings included
a rise of aggregate operating profits of €1.5bn in the last two years, compared
to losses of €700m in the two years immediately prior to the introduction of
Financial Fair Play.
Source: UEFA’s
eighth club licensing benchmarking report on European football, slide
107.
Meanwhile the aggregate losses dropped by 81% from
€1.7bn in 2011 to just over €300m in 2015.More...
Editor’s note: This report compiles all relevant news, events and
materials on International and European Sports Law based on the daily coverage
provided on our twitter feed @Sportslaw_asser. You are
invited to complete this survey via the comments section below, feel free to
add links to important cases, documents and articles we might have
overlooked.
The Headlines
The Diarra
ruling of the Tribunal of Charleroi
On 19 January 2017, the Hainaut Commercial Tribunal –
Charleroi rendered its decision on the lawsuit filed by the football player
Lassana Diarra against FIFA and the Belgian FA (URBSFA) for damages caused by
not being able to exercise the status of a professional football player during
the entire 2014/2015 season. The lawsuit is linked to the decision, rendered by
the FIFA Dispute Resolution Chamber (DRC) on April 2015, to support Lokomotiv’s
decision to terminate the player’s contract and to order Diarra to pay Lokomotiv
the amount of EUR 10,500,000 for having breached his contract. According to the
plaintiff, Diarra’s opportunity to be recruited by Sporting Charleroi was
denied due to the club being potentially considered jointly liable for Diarra’s
compensation pursuant to Article 17 (2) RSTP. The Belgian court held strongly
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”. This case highlighted, once again, the need to read
the RSTP in the light of EU law. Moreover, the decision is laying further
ground for broader challenges to the RSTP on the basis of EU law (for a deeper
insight into the Diarra ruling, see the recent blog written by our senior researcher
Antoine Duval) More...
Editor’s
Note: Emre Bilginoglu[1]
is an attorney in Istanbul and the co-founder of the Turkish E-Sports Players
Association, a non-profit based in Istanbul that aims to provide assistance to
professional gamers and to work on the relevant laws affecting them.
The world is witnessing the
rise of a new sport that is growing at an incredible speed: E-Sports. We are
only starting to understand its legal implications and challenges.
In
recent years, E-Sports has managed to attract thousands of fans to arenas to
see a group of people play a video game. These people are literally
professional gamers (cyber athletes)[2]
who make money by competing in tournaments. Not all video games have tournaments
in which professional players compete against each other.
The most played
games in E-Sports competitions are League of Legends (LoL),
Defense of the Ancients 2 (DotA 2) and Counter-Strike: Global
Offensive (CS:GO). LoL and DotA are both Multiplayer online
battle arena (MOBA) games, a genre of strategy video games in which the player
controls a single character in one of two teams. The goal of the game is to
destroy the opponent’s main structure. CS:GO is a first-person shooter (FPS)
game, a genre of video games where the player engages combat through a
first-person perspective. The main objective in CS:GO is to eliminate the opposing team
or to terrorize or counter-terrorize, planting bombs or rescuing hostages. Other
games that have (popular) E-Sports competitions include Starcraft II (real time
strategy), Hearthstone (collectible card video game), Call of Duty (FPS) and
FIFA (football).
The
gaming requires cooperation between team players, a high level of concentration,
rapid reactions and some seriously fast clicking. E-Sports is a groovy term to
describe organized competitive computer gaming. The E-Sports industry is
exponentially growing, amounting to values expressed in billions of dollars. According
to Newzoo,
a website dedicated to the collection of E-Sports data, there are some 250
million occasional viewers of E-Sports with Asia-Pacific accounting for half of
the total amount. The growth of the industry is indubitably supported by online
streaming media platforms. This article aims to explain what E-Sports is and to give the readers
an insight on the key legal questions raised by it. More...
Editor’s Note: Saverio
Spera is an Italian lawyer and LL.M. graduate in International Business Law from
King’s College London. He is currently an intern at the ASSER International
Sports Law Centre.
The time
is ripe to take a closer look at the CAS and its transparency, as this is one
of the ways to ensure its public accountability and its legitimacy. From 1986
to 2013, the number of arbitrations submitted to the CAS has grown from 2 to more
than 400 a year. More specifically, the number of appeals submitted almost doubled
in less than ten years (from 175 in 2006, to 349 in 2013[1]).
Therefore, the Court can be considered the judicial apex of an emerging transnational
sports law (or lex sportiva).[2]
In turn, the increased authority and power of this institution calls for
increased transparency, in order to ensure its legitimacy.[3]
More...
Editor’s
note: Emilio García (emilio.garcia@uefa.ch) is a doctor in law and head of disciplinary and
integrity at UEFA. Before joining UEFA, he was the Spanish Football
Federation’s legal director (2004–12) and an arbitrator at the CAS (2012–13).In
this blog, Emilio García provides a brief review of a recent case before the Court
of Arbitration for Sport (CAS): Klubi
Sportiv Skënderbeu v UEFA
(CAS 2016/A/4650)[1], in
which he acted as main counsel for UEFA.
Sport and
match-fixing – A quick overview
Match-fixing is now legally defined as “an intentional
arrangement, act or omission aimed at an improper alteration of the result or
the course of a sports competition in order to remove all or part of the
unpredictable nature of the aforementioned sports competition with a view to
obtaining an undue advantage for oneself or for others”.[2]
It has been said that there has always been match-fixing in sport.[3]
From the ancient Olympic Games to the most important global sports competitions
of today, manipulation of results has always been an all-too-frequent occurrence.
We have seen a number of very prominent instances of
this kind of issue over the years. One of the most remarkable examples, which was
even the subject of a film,[4]
was the match-fixing episode during the 1919 World Series, where several
players from the Chicago White Sox were found guilty of accepting bribes and
deliberately losing matches against the Cincinnati Reds.[5]
The situation has changed considerably since then. In particular,
the globalisation of the sports betting industry has had a massive impact, with
recent studies estimating that between €200bn and €500bn is betted on sport
every year.[6]
Match-fixing does not just affect football either;[7]
it is also affecting other sports, most notably tennis.[8] More...
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.More...
Editor's note: This blog is part of a special blog series on the Russian doping scandal at the CAS. Last year I analysed the numerous decisions rendered by the CAS ad hoc Division in Rio and earlier this year I reviewed the CAS award in the IAAF case.
Unlike
the International Association of Athletics Federations (IAAF), the
International Paralympic Committee (IPC) was very much unaffected by the
Russian doping scandal until the publication of the first McLaren report in July
2016. The
report highlighted that Russia’s doping scheme was way more comprehensive than
what was previously thought. It extended beyond athletics to other disciplines,
including Paralympic sports. Furthermore, unlike the International Olympic
Committee (IOC) the IPC had a bit more time to deal with the matter, as the Rio
Paralympic Games were due to start “only” in September.
After
the release of the McLaren Report, the IPC president Sir Philip Craven was “truly shocked, appalled
and deeply saddened at the extent of the state sponsored doping programme
implemented in Russia”. He immediately announced the IPC’s intention to review
the report’s findings and to act strongly upon them. Shortly thereafter, on 22
July, the IPC decided to open suspension proceedings
against the National Paralympic Committee of Russia (NPC Russia) in light of
its apparent inability to fulfil its IPC membership responsibilities and
obligations. In particular, due to “the prevailing doping culture endemic
within Russian sport, at the very highest levels, NPC Russia appears unable or
unwilling to ensure compliance with and the enforcement of the IPC’s
Anti-Doping Code within its own national jurisdiction”. A few weeks later, on 7
August, the IPC Governing Board decided to suspend the Russian
Paralympic Committee with immediate effect “due to its inability to fulfil its
IPC membership responsibilities and obligations, in particular its obligation
to comply with the IPC Anti-Doping Code and the World Anti-Doping Code (to which
it is also a signatory)”. Indeed, these “obligations are a fundamental
constitutional requirement for all National Paralympic Committees (NPCs), and
are vital to the IPC’s ability to ensure fair competition and to provide a
level playing field for all Para athletes around the world”. Consequently, the
Russian Paralympic Committee lost all rights and privileges of IPC membership. Specifically,
it was not entitled to enter athletes in competitions sanctioned by the IPC,
and/or to participate in IPC activities. Thus, “the Russian Paralympic
Committee will not be able to enter its athletes in the Rio 2016 Paralympic
Games”. More...
Since the release of the earth-shattering
ARD documentary two years ago, the
athletics world has been in a permanent turmoil. The International Athletics
Association Federation (IAAF) is faced with both a never-ending corruption
scandal (playing out in front of the French police authorities) and the related systematic doping of Russian
athletes. The situation escalated in different phases led by the revelations of
Russian insiders. First, in December 2014 with the ARD documentary, which demonstrated
how widespread (and organized) the recourse to doping was in Russian athletics.
It triggered the Pound investigation financed by the World Anti-Doping Agency (WADA), which led to two
damaging reports (available here and here) for the Russian
anti-doping system and the IAAF itself. Thereafter, in November 2015, the IAAF
had no other choice but to provisionally suspend the Russian athletics
federation (ARAF then RusAF) and its members from IAAF competitions. Yet, this
was only the beginning as shortly after the former head of Moscow’s anti-doping
laboratory provided a
detailed sketch to the New York Times
of the operation of a general state-led doping scheme in Russia. The system was
designed to avert any positive doping tests for top-level Russian sportspeople and
was going way beyond athletics. These allegations were later largely confirmed
and reinforced by the McLaren investigation initiated by WADA in May 2016, and which published its first report in July 2016 shortly before the Rio Olympics. In June 2016, the IAAF anticipated
the conclusions of the report (it had received most of McLaren’s evidence beforehand) and decided to
maintain the ineligibility of Russian athletes for IAAF competitions, and for
the Rio Olympics. It did, however, foresee a narrow exception for Russian
athletes able to show that they were properly tested outside of Russia.
Nonetheless, the athletes using this exception were to compete under a neutral
flag at the Olympics. Unsurprisingly, Russian athletes led by pole superstar
(and now IOC member), Yelena Isinbayeva, and the Russian Olympic Committee
decided to challenge this decision in front of the Court of Arbitration for
Sport (CAS). Interestingly, while the decision was rendered on 21 July 2016, the
full text of the award was publically released only on 10 October 2016. In September,
I analysed the Rio
CAS Ad Hoc Decisions involving Russian athletes aiming to participate to the
Olympics. I will now turn to the IAAF
decision, which is of great importance to the future of the anti-doping system.
Indeed, it lays out the fundamental legal boundaries of the capacity of
international federations to impose sanctions on their members (and their
members) in order to support the world anti-doping fight. More...