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 Kristoffersen ruling: the EFTA Court targets athlete endorsement deals - By Sven Demeulemeester and Niels Verborgh

Editor’s note: Sven Demeulemeester and Niels Verborgh are sports lawyers at the Belgium law firm, Altius.

 

Introduction

In its 16 November 2018 judgment, the Court of Justice of the European Free Trade Association States (the EFTA Court) delivered its eagerly awaited ruling in the case involving Henrik Kristoffersen and the Norwegian Ski Federation (NSF). 

On 17 October 2016, Kristoffersen had taken the NSF to the Oslo District Court over the latter’s refusal to let the renowned alpine skier enter into a sponsorship with Red Bull. At stake were the commercial markings on his helmet and headgear in races organised under the NSF’s umbrella. The NSF refused this sponsorship because it had already granted the advertising on helmet and headgear to its own main sponsor, Telenor. Kristoffersen claimed before the Oslo District Court, that the NSF should be ordered to permit him to enter into an individual marketing contract with Red Bull. In the alternative, Kristoffersen claimed damages up to a maximum of NOK 15 million. By a letter of 25 September 2017, the Oslo District Court referred several legal questions to the EFTA Court in view of shedding light on the compatibility of the rules that the NSF had invoked with EEA law.

If rules do not relate to the conduct of the sport itself, but concern sponsorship rights and hence an economic activity, these rules are subject to EEA law. The EFTA Court ruling is important in that it sets out the framework for dealing with - ever more frequent - cases in which an individual athlete’s endorsement deals conflict with the interest of the national or international sports governing bodies (SGBs) that he or she represents in international competitions.More...


Season 2 of football leaks: A review of the first episodes

Season 2 of #FootballLeaks is now underway since more than a week and already a significant number of episodes (all the articles published can be found on the European Investigative Collaborations’ website) covering various aspect of the (lack of) transnational regulation of football have been released (a short German documentary sums up pretty much the state of play). For me, as a legal scholar, this new series of revelations is an exciting opportunity to discuss in much more detail than usual various questions related to the operation of the transnational private regulations of football imposed by FIFA and UEFA (as we already did during the initial football leaks with our series of blogs on TPO in 2015/2016). Much of what has been unveiled was known or suspected by many, but the scope and precision of the documents published makes a difference. At last, the general public, as well as academics, can have certainty about the nature of various shady practices in the world of football. One key characteristic that explains the lack of information usually available is that football, like many international sports, is actually governed by private administrations (formally Swiss associations), which are not subject to the similar obligations in terms of transparency than public ones (e.g. access to document rules, systematic publication of decisions, etc.). In other words, it’s a total black box! The football leaks are offering a rare sneak peak into that box.

Based on what I have read so far (this blog was written on Friday 9 November), there are three main aspects I find worthy of discussion:

  • The (lack of) enforcement of UEFA’s Financial Fair Play (FFP) Regulations
  • The European Super League project and EU competition law
  • The (lack of) separation of powers inside FIFA and UEFA More...

Supporters of the ISLJ Annual International Sports Law Conference 2018: Altius

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very happy to finish this series of interviews with Sven Demeulemeester from Altius, a Belgian law firm based in Brussels with a very fine (and academically-minded!) sports law team. 


1. Can you explain to our readers the work of Altius in international sports law? 

Across different sports’ sectors, Altius’ sports law practice advises and assists some of the world’s most high-profile sports governing bodies, clubs and athletes, at both the national and the international level. The team has 6 fully-dedicated sports lawyers and adopts a multi-disciplinary approach, which guarantees a broad range of legal expertise for handling specific cases or wider issues related to the sports industry. We are proud to be independent but, in cross-border matters, are able to tap into a worldwide network.

2. How is it to be an international sports lawyer? What are the advantages and challenges of the job? 

Sports law goes beyond one specific field of law. The multiplicity of legal angles keeps the work interesting, even after years of practising, and ensures that a sports lawyer rarely has a dull moment. The main downside is that the sports industry is fairly conservative and sometimes ‘political’. While the law is one thing, what happens in practice is often another. Bringing about change is not always easy. 

3. What are the burning issues in international sports law that you would like to see discussed at the conference? 

 The much-anticipated overhaul of the football transfer system is eagerly anticipated and is worth a thorough debate, also in terms of possible, viable alternatives. The impact of EU law - both internal market rules, competition law and fundamental rights – can hardly be underestimated. Also, dispute resolution mechanisms within the realm of sports - and an accessible, transparent, independent and impartial sports arbitration in particular - will remain a ‘hot’ topic in the sector for years to come. Furthermore, ethics and integrity issues should remain top of the agenda, as is being demonstrated by the current money-laundering and match-fixing allegations in Belgium. Finally, in a sector in which the use of data is rife, the newly-adopted GDPR’s impact remains somewhat ‘under the radar’.

4. Why did you decide to support the ISLJ Annual International Sports Law Conference? 

The ISLJ Annual International Sports Law Conference is refreshing, both in terms of its topics and participants. The academic and content-driven approach is a welcome addition to other sports law conferences in which the networking aspect often predominates.

Supporters of the ISLJ Annual International Sports Law Conference 2018: LawInSport

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very happy to continue this series of interviews with LawInSport, a knowledge hub and educational platform for the community of people working in or with an interest in sport and the law  (many thanks to LawInSport's CEO Sean Cottrell for kindly responding to our questions).


1. Can you explain to our readers what LawInSport is about?

LawInSport is a knowledge hub, educational platform and global community of people working in or with an interest in sport and the law.

Our objective is to help people ‘understand the rules of the game™’. What does this mean? It means people in sport having access to information that enables them to have a better understanding the rules and regulations that govern the relationships, behaviours and processes within sports. This in turn creates a foundation based on the principles of the rule of law, protecting the rights of everyone working and participating in sport.  

2. What are the challenges and perks of being an international sports law 'reporter’ ?

I do not consider myself a reporter, but as the head of an organisation that has a responsibility to provide the highest quality information on legal issues in sport,  focusing on what is important and not just what is popular, whilst trying to stay free from conflicts of interests. These two issues, popularism and conflict of interest, are the two of the biggest challenges.

Popularism and the drive to win attention is, in my opinion, causing a lack of discipline when it comes to factual and legal accuracy in coverage of sports law issues, which on their own may seem harmless, but can cause harm to organisations and individuals (athletes, employees, etc).

Conflict of interest will obviously arise in such a small sector, however, there is not a commonly agreed standard in internationally, let alone in sports law. Therefore, one needs to be diligent when consuming information to understand why someone may or may not hold a point of view, if they have paid to get it published or has someone paid them to write it. For this reason it can be hard to get a full picture of what is happening in the sector.

In terms of perks, I get to do something that is both challenging and rewarding on a daily basis, and as  a business owner I have the additional benefit of work with colleagues I enjoy working with. I have the privilege of meeting world leaders in their respective fields (law, sport, business, science, education, etc) and gain insights from them about their work and life experiences which is incredibly enriching.  Getting access to speak to the people who are on the front line, either athletes, coaches, lawyers, scientists, rather than from a third party is great as it gives you an unfiltered insight into what is going on.

On the other side of things, we get the opportunity to help people through either having a better understand of the legal and regulatory issues in sports or to understand how to progress themselves towards their goals academically and professionally is probably the most rewarding part of my work. 

3. What are the burning issues in international sports law that you would like to see discussed at the conference?

  • The long-term implications of human rights law in sport;
  • The importance of meaningful of stakeholder consultation in the creation and drafting of regulations in sport;
  • Effective international safeguarding in sport.

4. Why did you decide to support the ISLJ Annual International Sports Law Conference?

We support ISLJ Annual International Sports Law Conference as it is a non-profit conference that’s purpose is to create a space to explore a wide range of legal issues in sport. The conference is an academic conference that does a great job in bringing a diverse range of speakers and delegates. The discussions and debates that take place will benefit the wider sports law community.  Therefore, as LawInSport’s objective is focused on education it was a straight forward decision to support the conferences as it is aligned with our objectives. 

Supporters of the ISLJ Annual International Sports Law Conference 2018: Women in Sports Law

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very proud to start this series of interviews with Women in Sports Law, an association launched in 2016 and which has already done so much to promote and advance the role of women in international sports law (many thanks to Despina Mavromati for kindly responding to our questions on behalf of WISLaw).


1. Can you explain to our readers what WISLaw is about?

Women In Sports Law (WISLaw, www.wislaw.co) is an international association based in Lausanne that unites more than 300 women from 50 countries specializing in sports law. It is a professional network that aims at increasing the visibility of women working in the sector, through a detailed members’ directory and various small-scale talks and events held in different countries around the world. These small-scale events give the opportunity to include everyone in the discussion and enhance the members’ network. Men from the sector and numerous arbitral institutions, conference organizers and universities have come to actively support our initiative.


2. What are the challenges and opportunities for women getting involved in international sports law?

Women used to be invisible in this sector. All-male panels were typical at conferences and nobody seemed to notice this flagrant lack of diversity. WISLaw created this much-needed platform to increase visibility through the members’ directory and through a series of small-scale events where all members, independent of their status or seniority, can attend and be speakers.

Another difficulty is that European football (soccer) is traditionally considered to be a “male-dominated” sport, despite the fact that there are so many great female football teams around the world. The same misperception applies to sports lawyers!

Last, there is a huge number of women lawyers working as in-house counsel and as sports administrators. There is a glass ceiling for many of those women, and the WISLaw annual evaluation of the participation of women in those positions attempts to target their issues and shed more light into this specific problem.


3. What are the burning issues in international sports law that you would like to see discussed at the conference?

The ISLJ Annual Conference has already set up a great lineup of topics combining academic and more practical discussions in the most recent issues in international sports law. 


4. Why did you decide to support the ISLJ Annual International Sports Law Conference?

The Asser International Sports Law Centre has promoted and supported WISLaw since the very beginning. The ISLJ Annual International Sports Law Conference was the first big conference to officially include a WISLaw lunch talk in its program, allowing thus the conference attendees to be part of a wider informal discussion on a specific topical issue and raise their questions with respect to WISLaw. Another important reason why WISLaw supports this conference is because the conference organizers are making sincere efforts to have increased diversity in the panels : this year’s ISLJ Annual International Sports Law Conference is probably the first sports law conference to come close to a full gender balance in its panels, with 40% of the speakers being women !

The proportionality test under Art. 101 (1) TFEU and the legitimacy of UEFA Financial fair-play regulations: From the Meca Medina and Majcen ruling of the European Court of Justice to the Galatasaray and AC Milan awards of the Court of Arbitration for Sport – By Stefano Bastianon

Editor’s note: Stefano Bastianon is Associate Professor in EU Law and EU sports law at the University of Bergamo and lawyer admitted to the Busto Arsizio bar. He is also member of the IVth Division of the High Court of Sport Justice (Collegio di Garanzia dello sport) at the National Olympic Committee.

 

1. On the 20th July 2018, the Court of Arbitration for Sport (hereinafter referred to as “CAS”) issued its decision in the arbitration procedure between AC Milan and UEFA. The subject matter of this arbitration procedure was the appeal filed by AC Milan against the decision of the Adjudicatory Chamber of the UEFA Financial Control Body dated 19th June 2018 (hereinafter referred to as “the contested decision”). As many likely know, the CAS has acknowledged that, although AC Milan was in breach of the break-even requirement, the related exclusion of the club from the UEFA Europe League was not proportionate. To date, it is the first time the CAS clearly ruled that the sanction of exclusion from UEFA club competitions for a breach of the break-even requirement was not proportionate. For this reason the CAS award represents a good opportunity to reflect on the proportionality test under Art. 101 TFEU and the relationship between the landmark ruling of the European Court of Justice (hereinafter referred to as “ECJ”) in the Meca Medina and Majcen affair and the very recent case-law of the CAS. More...

The “Victory” of the Court of Arbitration for Sport at the European Court of Human Rights: The End of the Beginning for the CAS

My favourite speed skater (Full disclosure: I have a thing for speed skaters bothering the ISU), Claudia Pechstein, is back in the news! And not from the place I expected. While all my attention was absorbed by the Bundesverfassungsgericht in Karlsruhe (BVerfG or German Constitutional Court), I should have looked to the European Court of Human Rights in Strasbourg (ECtHR). The Pechstein and Mutu joint cases were pending for a long time (since 2010) and I did not anticipate that the ECtHR would render its decision before the BVerfG. The decision released last week (only available in French at this stage) looked at first like a renewed vindication of the CAS (similar to the Bundesgerichtshof (BGH) ruling in the Pechstein case), and is being presented like that by the CAS, but after careful reading of the judgment I believe this is rather a pyrrhic victory for the status quo at the CAS. As I will show, this ruling puts to rest an important debate surrounding CAS arbitration since 20 years: CAS arbitration is (at least in its much-used appeal format in disciplinary cases) forced arbitration. Furthermore, stemming from this important acknowledgment is the recognition that CAS proceedings must comply with Article 6 § 1 of the European Convention of Human Rights (ECHR), in particular hearings must in principle be held in public and decisions freely available to all. Finally, I will criticise the Court’s finding that CAS complies with the requirements of independence and impartiality imposed by Article 6 § 1 ECHR. I will not rehash the  well-known facts of both cases, in order to focus on the core findings of the decision. More...

ISLJ International Sports Law Conference 2018 - Asser Institute - 25-26 October - Register Now!

Dear all,

Last year we decided to launch the 'ISLJ Annual International Sports Law Conference' in order to give a public platform to the academic discussions on international sports law featured in the ISLJ. The first edition of the conference was a great success (don't take my word for it, just check out #ISLJConf17 on twitter), featuring outstanding speakers and lively discussions with the room. We were very happy to see people from some many different parts of the world congregating at the Institute to discuss the burning issues of their field of practice and research.

This year, on 25 and 26 October, we are hosting the second edition and we are again welcoming well-known academics and practitioners in the field. The discussions will turn around the notion of lex sportiva, the role of Swiss law in international sports law, the latest ISU decision of the European Commission, the Mutu/Pechstein ruling of the European Court of Human Rights, or the reform proposal of the FIFA Regulations on the Transfer and Status of Players. It should be, it will be, an exciting two days!

You will find below the final programme of the conference, please feel free to circulate it within your networks. We have still some seats left, so don't hesitate to register (here) and to join us.

Looking forward to seeing you and meeting you there!

Antoine

Football Intermediaries: Would a European centralized licensing system be a sustainable solution? - By Panagiotis Roumeliotis

Editor's note: Panagiotis Roumeliotis holds an LL.B. degree from National and Kapodistrian University of Athens, Greece and an LL.M. degree in European and International Tax Law from University of Luxembourg. He is qualified lawyer in Greece and is presently working as tax advisor with KPMG Luxembourg while pursuing, concomitantly, an LL.M. in International Sports Law at Sheffield Hallam University, England. His interest lies in the realm of tax and sports law. He may be contacted by e-mail at ‘p.roumeliotis@hotmail.com’.


Introduction

The landmark Bosman Ruling triggered the Europeanization of the labour market for football players by banning nationality quotas. In turn, in conjunction with the boom in TV revenues, this led to a flourishing transfer market in which players’ agents or intermediaries play a pivotal role, despite having a controversial reputation.

As a preliminary remark, it is important to touch upon the fiduciary duty of sports agents towards their clients. The principal-agent relationship implies that the former employs the agent so as to secure the best employment and/or commercial opportunities. Conversely, the latter is expected to act in the interest of the player as their relationship should be predicated on trust and confidence, as much was made clear in the English Court of Appeal case of Imageview Management Ltd v. Kelvin Jack. Notably, agents are bound to exercise the utmost degree of good faith, honesty and loyalty towards the players.[1]

At the core of this blog lies a comparative case study of the implementation of the FIFA Regulations on working with intermediaries (hereinafter “FIFA RWI”) in eight European FAs covering most of the transfers during the mercato. I will then critically analyze the issues raised by the implementation of the RWI and, as a conclusion, offer some recommendations. More...



Seraing vs. FIFA: Why the rumours of CAS’s death have been greatly exaggerated

Rumours are swirling around the decision (available in French here) of the Court of Appeal of Brussels in the case opposing RFC Seraing United to FIFA (as well as UEFA and the Belgian Football Federation, URSBFA) over the latter’s ban on third-party ownership. The headlines in various media are quite dramatic (see here and here), references are made to a new Bosman, or to a shaken sport’s legal system. Yet, after swiftly reading the decision for the first time on 29th August, I did not have, unlike with the Pechstein ruling of the Oberlandesgericht München, the immediate impression that this would be a major game-changer for the Court of Arbitration for Sport (CAS) and the role of arbitration in sports in general. After careful re-reading, I understand how certain parts of the ruling can be misunderstood or over-interpreted. I believe that much of the press coverage failed to accurately reflect the reasoning of the court and to capture the real impact of the decision. In order to explain why, I decided to write a short Q&A (including the (not water-proof) English translations of some of the key paragraphs of the decision).

 More...

Asser International Sports Law Blog | The Legia Warszawa case: The ‘Draconian’ effect of the forfeiture sanction in the light of the proportionality principle. By Thalia Diathesopoulou

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 Legia Warszawa case: The ‘Draconian’ effect of the forfeiture sanction in the light of the proportionality principle. By Thalia Diathesopoulou

The CAS denial of the urgent request for provisional measures filed by the Legia Warszawa SA in the course of its appeal against the UEFA Appeals Body Decision of 13 August 2014 put a premature end to Legia’s participation in the play-offs of the UEFA Champion’s League (CL) 2014/2015. Legia’s fans- and fans of Polish football - will now have to wait at least one more year to watch a Polish team playing in the CL group stage for the first time since 1996.

While the CAS proceedings for the appeal filed by Legia against UEFA and Celtic FC are pending and the grounds of dismissal by the CAS of the application for provisional measures have not been publicly known, the CAS is called to rule on the interpretation of the proportionality principle with regard to the application of the 3-0 defeat sanction against a club that fielded an ineligible player. The cornerstone question is whether the final award on the merits will be in line with UEFA and CAS jurisprudence suggesting a literal interpretation of Article 21.2 of the UEFA Disciplinary Regulations (UEFA DR) or whether the CAS will allow for a broader interpretation of the proportionality principle in case of mere technical administrative errors. 


Background and facts of the case

Legia’s adventures began when Legia’s player, Bartosz Bereszynski, was sent off in their final Europa League tie of last season against Apollon Limassol FC and was sanctioned by the UEFA Control and Disciplinary Body decision of 13 February 2014 with three-match suspension.  UEFA regulations are clear in that a ban applies to a player if he is listed in a club’s squad for matches. Bereszynski did not play in Legia’s games with St Patrick’s Athletics and in the first leg against Celtics FC. However, due to a technical error of Legia’s administrator, which was to prove fatal, the player was not registered in the squad list for the St Patrick’s tie and the first two games of his suspension were never properly recognized. As a result of the player’s failure to serve the suspension, Bereszynski’s participation in the second leg against Celtics FC as a 86th minute substitute triggered the application of Article 18 of the Regulations of the UEFA Champions League 2012-2015 and Article 21.2 of the UEFA DR and Legia was to be sanctioned for fielding a suspended player. Therefore, the match was declared forfeited; for UEFA’s purposes, Legia lost the game 3-0 and the initial 6-1 aggregate defeat for Celtic was reversed to a 4-4 aggregate score, opening the door for Celtic to progress in UEFA CL play-offs on away goals.  


The Legia case in the light of UEFA jurisprudence

At a first glance, the case at issue seems to present several factual similarities with the Bowyer and Matoukou cases brought before UEFA’s Control and Disciplinary Body, which, however, have never been appealed before the CAS.

In the first case, similarly to the Legia case, due to an administrative error of Newcastle United FC, Bowyer had not been registered as ‘eligible to play’ in the six UEFA matches in 2004. As a result, UEFA’s Control and Disciplinary body, applying UEFA Regulations, decided that Bowyer had not served the suspension carried over from his days as a Leeds United player and was banned for the next six European matches. This decision was challenged by Newcastle and the English Football Association (FA) before the UEFA’s Appeal Body, which upheld the initial decision. It is remarkable that the FA supported Newcastle’s appeal, expressing its concerns with regard to the ambiguous language of the rules on players’ eligibility.

In the second case, Matoukou while playing for KRC Genk against FC Porto on 19 August 2010 in a UEFA Europa League qualifier, received a red card and as a consequence was sanctioned with a two-match suspension. Matoukou sat out the second leg of that tie and, after Genk’s elimination, played no further European games for Genk. On 2 August 2012, Matoukou, as a player of Arsenal Kiev FC, scored against ND Mura 05. However, Matoukou had not served the second part of his suspension before taking part to this game. As a result of his ineligibility, UEFA’s Control and Disciplinary Body declared the match forfeited. Although there is no doubt that the player did not serve the two-match suspension, this case illustrates the most recent example of the clear-cut application of Disciplinary Regulations by UEFA.

A similar example is the harsh sanction of 3-0 defeat applied against PAOK Saloniki in 2004 for fielding the suspended player, Laisis Louca, in the first leg of the CL third qualifying round against Maccabi Tel Aviv. NK Zepce was also punished with the same severity in 2005 for fielding a suspended player in the first half of their match against FK Baskimi. The inevitable conclusion of this brief overview of UEFA jurisprudence is that UEFA’s practice has been consistent; UEFA Regulations on players’ eligibility are sufficiently clear and they give no room for a different interpretation. However, it should be noted that the UEFA decisions can be appealed before the CAS. Therefore, the CAS jurisprudence needs to be examined in order to assess whether the CAS in interpreting UEFA Regulations has deviated from this rather simplistic clear-cut approach of UEFA.  


The Legia case in the light of CAS jurisprudence

The Sion[1] case has been the CAS landmark case with regard to the proportionality of the sanction of forfeiture for clubs fielding ineligible players. In this case, the CAS confirmed that FC Sion was banned from registering five new players in the summer transfer period of 2011/12 pursuant to the FIFA decision and was excluded from UEFA Europa League. Funnily enough, Celtic was also back then the lucky club, which enjoyed a ‘second bite of the cherry’. While this case presents only few factual similarities with the Legia case, its importance lies in that the CAS had to rule whether a club’s exclusion mandated by UEFA Regulations is in conformity with Swiss antitrust law and the proportionality principle.

The CAS confirmed that UEFA is an undertaking enjoying a dominant position on the market of international football competitions.[2] However, according to the CAS,  Article 18 of the UEFA Regulations authorizing UEFA to sanction clubs which field ineligible players does not constitute an abuse of its dominant position, but rather ‘guarantees the efficiency and equal treatment of the clubs[3]. Relying on its mandate to establish uniform regulations applicable equally to all clubs and to guarantee legal certainty in sports competitions, the CAS found that the sanction of forfeiture for clubs fielding ineligible players is an appropriate, necessary and proportionate measure.[4] To reach this conclusion, the CAS applied a twofold test for the proportionality principle to be enforced: (1) the capacity of the sanction of forfeiture to achieve the aim it pursues, i.e. to ensure the equal treatment of the clubs; and (2) the necessity of the sanction, i.e. the absence of alternative measures, since during the qualification phase of the tournament other sanctions such as the deduction of points are not possible.

In this case, the CAS deviated from the strict literal interpretation of Article 21.2 of UEFA Disciplinary Regulations and elaborated an interpretation of the forfeiture sanction in the light of the proportionality principle, applying the twofold test. It is highly likely that the CAS in the Legia case will follow this interpretation, relying on the necessity of the sanction, i.e. because of the absence of alternative measures, and its mandate to protect the equal treatment of the clubs and will confirm, therefore, the conformity of the UEFA decision with Article 21.2. However, it is the suggestion of this case commentary that a different interpretation of Article 21.2 in the light of the proportionality principle could also be elaborated on.  


Mapping an alternative interpretation of Article 21.2 of UEFA Disciplinary Regulations

In this attempt to elaborate a different interpretation of Article 21.2 in the light of the proportionality principle, this article will use as a benchmark the CAS finding that ‘other elements such as the systematic context, the purpose and history of the rule may contribute to the correct understanding of the meaning of the rule[5]. Although the wording of Article 21.2 is clear and seems to create a lex specialis rule with regard to the forfeiture sanction in case of a player’s ineligibility, it is suggested that a different interpretation of Article 21 can be envisaged if it is examined in conjunction with the General Principles laid down in Article 17.1 of the UEFA Disciplinary Regulation.

Specifically, Article 17.1 states that the disciplinary body determines the type and extent of the disciplinary measures to be imposed in accordance with the objective and subjective elements of the offence, taking account of both aggravating and mitigating circumstances.[6] This means that a sanction may be scaled down when proper consideration is given to the specific circumstances. This provision is in line with the well-established in Swiss law, EU law and CAS jurisprudence[7] proportionality principle, namely that in disciplinary matters a reasonable balance must be struck between the violation and the sanction.

Therefore, in the case at issue the question could be articulated as such: Could an interpretation of Article 21.2 in the context of Article17.1 and the proportionality principle result in a different sanction than forfeiture?

In the light of Article 17.1, an argument deriving from the specific ‘aggravating and mitigating’ circumstances of Article 17.1 could be that the ineligible player did actually abstain from three matches and it was due to a mere technical error that the player did not serve his suspension correctly. It could be suggested, therefore, that the forfeiture sanction is too harsh, since Legia acted in good faith and it was only because of this administrative error that the player was considered ineligible.

Furthermore, in the same spirit, Legia could claim that the sanction should be scaled down given that the player in question played for only four minutes as a substitute with the aggregate score of 6-1 in Legia’s favour. Considering that the ineligible player did not have any considerable impact on the tie[8], Legia could claim that the forfeiture sanction is too harsh as compared to the violation committed by the club. In a similar case, in 2010, UEFA fined Debrecen VSC for fielding in a good faith an ineligible player, instead of declaring the match forfeit: UEFA considered that Debrecen ‘had no interest in fielding this player for the three last minutes of additional time, when the score was so clearly in its favour’. It should be pointed out that in the Debrecen case the ineligible player was free to play if registered and, as a result, Article 21.3 applied. By contrast, in the Legia case the player was suspended and therefore excluded from the competition.

However, it could be argued that UEFA’s decision in the Debrecen case could serve as a guideline for a more flexible interpretation of Article 21.2. While the wording of Article 21.3 itself gives enough room for discretion to UEFA to declare a match forfeit (‘a match may be declared forfeit’), an interpretation of Article 21.2 in the light and purpose of Articles 17.1 and 21.3 could lead to a less draconian sanction, taking into consideration the specific circumstances of the case. Although the difference in the wording between Articles 21.2 (‘a match is declared’) and 21.3 draws a clear distinction between the consequences of fielding a suspended player and an ineligible player, it is the suggestion of this commentary that this distinction is at odds with the proportionality principle. Considering the proportionality’s principle status as a ‘general principle of law governing the imposition of sanctions of any disciplinary body[9], it is surprising that Article 21.2 imposes the forfeiture sanction, without any reference to the proportionality of the sanction as compared to the violation committed. In this sense, the sanction of forfeiture leading to Legia’s exclusion from UEFA CL – and to the enormous economic loss for the club that this exclusion entails- seems disproportionate in the light of the specific circumstances of the case. In other words, a literal interpretation of Article 21.2, even in cases where the violation is the result of a mere technical error and the fact that the Club had no interest in fielding the suspended player, seems to overturn the reasonable balance between the violation and the sanction. 


Conclusive remarks

Until today, in the name of legal certainty, UEFA and the CAS have applied in a consistent way a literal interpretation of Article 21.2 of UEFA Disciplinary Regulations. While legal certainty is the ratio legis and justification of the sanctions imposed by UEFA[10], this commentary argued that the ‘without-exemption’ application of the forfeiture sanction can undermine the proportionality principle, which is also a fundamental principle recognized by the CAS jurisprudence. In this light, it has been demonstrated that a flexible interpretation of Article 21.2 in the context of the general provisions of Article 17.1, i.e. an interpretation which would render the act of fielding a suspended player subject to the full scale of disciplinary measures and would leave sufficient room for discretion to UEFA disciplinary body and to the CAS, would be in compliance with the proportionality principle. To this extent, construing a method for interpretation of Article 21.2 in conjunction with Articles17.1 and 21.3 is an important step to arrive at a better evaluation of the existing regime and to clarify the complex and still unsettled interplay between the intensity of the violation and the sanction.

Therefore, it remains to be seen whether the CAS will follow the path -strikingly consistent until now- of a literal interpretation of Article 21.2 or whether it will opt for a tailored sanction, which would be in compliance with the proportionality principle.



[1] CAS 2011/O/2574 UEFA v. Olympique des Alpes SA/FC Sion

[2] CAS 2011/O/2574 (n 5), para 115.

[3] Ibid, paras 124 & 130.

[4] Ibid, para 135.

[5] CAS 2007/A/1363 TTF Liebherr Ochsenhausen v/ETTU, award of 5 October 2007, para 12

[6] Article 17.1 (n 1).

[7] CAS 2001/A/330 R. v. Fédération Internationale des Sociétés d'Aviron (FISA), Award of 23 Nov 2001

[8] By contrast, see Sion case (n5) where Pascal Feindouno, one of Sion’s ineligible players, scored against Celtic.

[9] G. Kaufmann-Kohler and A. Rigozzi, ‘Legal Opinion on the Conformity of Article 10.6 of the 2007 Draft WADA Code with the Fundamental Rights of Athletes’, 42.

[10] CAS 2007/A/1278&1279,  para 131.

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