This post offers a basic literature review on publications on international and European sports law in 2015. It does not have the pretence of being complete (our readers are encouraged to add references and links in the comments under this blog), but aims at covering a relatively vast sample of the 2015 academic publications in the field (we have used the comprehensive catalogue of the Peace Palace Library as a baseline for this compilation). When possible we have added hyperlinks to the source.^[1]

Have a good read.

Books

Stefano Bastianon (ed.), La sentenza Bosman vent'anni dopo. Aspetti giuridico-economici della sentenza che ha cambiato il calcio professionistico europeo (Giappichelli, Torino 2015)

Stefano Bastianon (ed.), L'Europa e lo sport. Profili giuridici, economici e sociali. Atti del 4° Convegno (Bergamo, 26 novembre 2014) (Giappichelli, Torino 2015)

Frédéric Buy & al (ed.), Droit du sport (L.G.D.J, Paris 2015)

Johnny Maeschalk et al., Sportrecht (Die Keure, Brugge, 2015)

Mathieu Maisonneuve (ed.), Droit et olympisme : contribution à l'étude juridique d'un phénomène transnational, (Presses Universitaires d'Aix-Marseille, Aix en Provence 2015)

Despina Mavromati and Matthieu Reeb, The Code of the Court of Arbitration for Sport : commentary, cases and materials (Wolters Kluwer, Alphen aan den Rijn 2015)

David McArdle, Dispute Resolution in Sport: Athletes, Law and Arbitration (Routledge, Taylor & Francis Group, London, New York 2015)

Patrick Meier, Dopingsanktion durch Zahlungsversprechen: das Beispiel der Ehrenerklärungen des Weltradsportverbands UCI (Duncker and Humblot, Berlin 2015)

Mario Merget, Beweisführung im Sportgerichtsverfahren am Beispiel des direkten und indirekten Dopingnachweises (Duncker and Humblot, Berlin 2015)

Katarina Pijetlovic, EU sports law and breakaway leagues in football (Asser Press, The Hague 2015)

Moritz Tauschwitz, Die Dopingverfolgung in Deutschland und Spanien. Eine strafrechtliche und kriminologische Untersuchung (Duncker and Humblot, Berlin 2015)

Klaus Vieweg (ed.), Lex Sportiva (Duncker and Humblot, Berlin 2015)

Klaus Vieweg, Gert-Peter Brüggemann, Franz Steinle (ed.), "Techno-Doping": Leistungssteigerung durch technische Hilfsmittel aus naturwissenschaftlicher und juristischer Perspektive (Boorberg, Stuttgart 2015)

Klaus Vieweg (ed.), Impulse des Sportrechts (Duncker and Humblot, Berlin 2015)

Marjolaine Viret, Evidence in Anti-Doping at the Intersection of Science & Law (T.M.C. Asser Press, 2016)

Markus Zimmermann, Vertragsstabilität im internationalen Fußball : unter besonderer Berücksichtigung der Rechtsprechung der FIFA und des CAS (Richard Boorberg, Stuttgart 2015)

Academic Journals[2]

The International Sports Law Journal

Antonio Rigozzi, Ulrich Haas, Emily Wisnosky, Marjolaine Viret, Breaking down the process for determining a basic sanction under the 2015 World Anti-Doping Code, June 2015, Volume 15, Issue 1, pp 3-48

Elena Atienza-Macias, 2015 WADA code comes into effect: significant changes in the Spanish legal arena, June 2015, Volume 15, Issue 1, pp 49-54

Antoine Duval, Cocaine, doping and the court of arbitration for sport, June 2015, Volume 15, Issue 1, pp 55-63 

Corinna Coors, Are sports image rights assets? A legal, economic and tax perspective, June 2015, Volume 15, Issue 1, pp 64-68

Simon Boyes, Legal protection of athletes’ image rights in the United Kingdom, June 2015, Volume 15, Issue 1, pp 69-82

Tom Serby, The Council of Europe Convention on Manipulation of Sports Competitions: the best bet for the global fight against match-fixing?, June 2015, Volume 15, Issue 1, pp 83-100

Jonathan Liljeblad, Foucault, justice, and athletes with prosthetics: the 2008 CAS Arbitration Report on Oscar Pistorius,  June 2015, Volume 15, Issue 1, pp 101-111

Jacob Kornbeck, Lisbonisation without regulation: engaging with sport policy to maximise its health impact?, June 2015, Volume 15, Issue 1, pp 112-122

Sergey Yurlov, Right to participate in sporting competition: a human right or legal fiction and the Russian legal framework for sport, June 2015, Volume 15, Issue 1, pp 123-127

SpuRt: Zeitschrift für Sport und Recht

Fabian Stancke, ‘Pechstein und der aktuelle Stand des Sportkartel‘ (2015), Volume 22, Issue 2, 46-51

Jan F. Orth, Martin Stopper, ‘Entscheidungsvollzug in der Verbandspyramide und Ausbildungsentschädigung‘ (2015), Volume 22, Issue 2, 51-56

Philipp Wackerbeck, ‘Das Aus der Spielervermittlerlizenz und das "Dritteigentum an Spielerrechten" - eine erste, kritische Bestandsaufnahme‘ (2015), Volume 22, Issue 2, 56-61

Michael Geistlinger, Julia Schaffelhofer, ‘Die Vierjahressperre nach dem WADC 2015 aus dem Blickwinkel der grundrechtlichen Berufsfreiheit‘ (2015), Volume 22, Issue 3, 101-105

Causa Sport: die Sport-Zeitschrift für nationales und internationales Recht sowie für Wirtschaft

Peter W. Heermann, ‘Related Parties gemäss Financial Fair Play: Erste Erfahrungen‘ (2015), Issue 1, 3-9

Markus Zimmermann, ‘Komplexe Konsequenzen bei Vertragsauflösungen im Fussball‘ (2015), Issue 1, 16-22

Patrick Redell, ‘Spielerverträge mit Minderjährigen: droht ein neuer "Bosman" Fall?‘ (2015), Issue 1, 28-36

Anne-Sophie Morand, ‘Verbote religiöser und politischer Symbole im Sport im Lichte des Persönlichkeitsrechts‘ (2015), Issue 1, 72-81

Luca Beffa & Olivier Ducrey, Review of the 2014 Case Law of the Swiss Federal Tribunal concerning Sports Arbitration (2015), Issue 2, 115-123

Marco Del Fabro, Optionen nach dem Verbot von Third Party Ownerships (2015), Issue 3, 219-230

Ralf Eckert  & Clauia Wisser, Die Genehmigungsgebühr des DLV im Lichte des <Pechstein-Urteils> des OLG München (2015), Issue 3, 238-241

Matthias Neumann, Die Lizenzbox : attraktives Steuerungsinstrument für Fußballklubs im Rahmen des Merchandising (2015), Issue 3,  295-303

Dominik Kocholl, Schiedsklauseln im internationalen Sport : gewollt oder nicht? : Anmerkungen zur Entscheidung des Gerichtshofs vom 18. Februar 2015 3 Ob 157/14f (2015), Issue 3,  311-321

Urs Scherrer, FIFA : Reflexionen zu Fakten, zu Spekulationen und zur Zukunft (2015), Issue 3, 322-325

Jonas Leder, Das Bewerbungsverfahren um die Ausrichtung der Olympischen Spiele nach der IOC-Agenda 2020 (2015), Issue 4, 339-343 

Robin van der Hout & Christian Wagner, Neue Möglichkeiten beihilferechtskonformer Finanzierung von Sportinfrastrukturen (2015), Issue 4, 344-352

Paul Lambertz, Problematische Namensveröffentlichungsregelung in Dopingfällen gemäss WADA-Code (2015), Issue 4, 369-373

Peter W. Heermann, Abstellung von Nationalspielern aus kartellrechtlicher Sicht (2015), Issue 4, 384-391

Revista española de derecho deportivo

Diego Medina Morales, ‘Derecho del deporte y normas de juego’ (2015), Volume 35, Issue 1, 11-18

Sandra L. Echeverry Velásquez, ‘Límites en la actividad publicitaria de naturaleza general y especial aplicada al deporte’ (2015), Volume 35, Issue 1, 55-78

Emilio A. García Silvero, ‘La disciplina deportiva en las federaciones deportivas internacionales: algunos aspectos básicos para su adecuada comprensión’(2015) Volume 35, Issue 1, 79-102

Rivista di diritto ed Economia dello sport

Mario Vigna, La Saga Pechstein : Tremano le colonne del tempio tas ? (2015), Issue 1, 13-30

Alessandro Coni, Le Third-Party Ownership, (2015), Issue 1, 31-68

Michele Spadini, La normativa FIFA a tutela dei minori alla luce del « caso Barcellona »
(2015), Issue 2, 17-46

Piero Sandulli, Acquisizione e valutazione della prova nel processo sportivo : Profili problematici ? (2015), Issue 2, 47-58

Luca Smacchia, Il lodo Mutu : Come il diritto europeo limita la specificità dello sport (2015), Issue 2, 75-88

Gerardo Russo, Lo sviluppo tecnico normativo nella lotta al doping e l’impatto sul rilascio delle licenze world tour UCI : Il caso Astana (2015), Issue 2, 89-116

Salvatore Civale, L'Indennità di formazione e il contributo di solidarietà nei trasferimenti internazionali dei calciatori alla luce della circolare FIFA n.1500 (2015), Issue 2, 117-126

Massimiliano Zampi & Giovanna Tassoni, Il doping tra medicina legale e diritto, osservazioni sulla liceità dei prelievi e sulle modlità di accertamento(2015), Issue 2, 135-148

Alessandro Coni, Il caso RFC Sérésien : La prima condanna per violazione del divieto di TPO (2015), Issue 2, 135-148

Sweet & Maxwell's international sports law review

James M. Dorsey, ‘To watch or not to watch? : Middle Eastern Women's Sporting Rights’ (2015) Sweet & Maxwell's international sports law review

Lauri Tarasti, ‘First International Convention against Sport Manipulation’ (2015) Sweet & Maxwell's international sports law review

Kevin Carpenter & Adam Pendlebury, ‘Tweeting the Game into Disrepute : Regulation of Social Media by Governing Bodies : Lessons from English Football’ (2015) Sweet & Maxwell's international sports law review

Ulrich Haas, ‚The Court of Arbitration for Sport in the Case Law of the German Courts’ (2015) Sweet & Maxwell's international sports law review

Others

Toine Spapens and Marjan Olfers, Match-fixing: The Current Discussion in Europe and the Case of The Netherlands (2015) European Journal of Crime Criminal Law and Criminal Justice; vol. 23, Issue. 4, 333-358

Ulrich Haas, Der Court of Arbitration for Sport im Spiegel der deutschen Rechtsprechung (2015) Zeitschrift fur Vergleichende Rechtswissenschaft; vol. 114, issue. 4, 516-544

Andrew Wacke, Spiel und Wette (insbesondere Sportwetten) in der Entwickliung des europäischen Zivilrechts (2015) Zeitschrift für europäisches Privatrecht, Issue 1, 88-104

Valerie Kaplan, UEFA Financial Fair play Regulations and the European Union Antitrust Law Complications (2015) Emory International Law Review, Volume 29, Issue 4, 799-857

Philippe Cavalieros, Janet (Hyun Jeong) Kim, Can the Arbitral Community learn from Sports Arbitration? (2015) Journal of International Arbitration, Volume 32, Issue 2, 237-260 

Ralf Eckert, Maut fürs Laufen : zur Rechtmäßigkeit einer von einem Sportverband erhobenen Abgabe (2015) Wirtschaft und Wettbewerb, Volume 65, Issue 5, 480-489

Evelyne Lagrange, L'État et les puissances privées : digressions sur la compétence plénière de l'État et "l'autonomie du mouvement sportif" in Pierre d'Argent, Béatrice Bonafé et Jean Combacau (eds.) Les limites du droit international : essais en l'honneur de Joe Verhoeven, 183-204, 2015, ISBN 9782802742913

Mark Pieth, Ist der FIFA noch zu helfen? (2015) Zeitschrift fur Schweizerisches Recht, vol. 134, Issue. 1, 135-148

Danielle Wood, Giving Competition a Sporting Chance? : The Role for Antitrust Laws in Promoting Competition from New Sporting Leagues in Australia and the United States (2015) Australian Business Law Review; vol. 43, Issue. 3, 206-227

Oliver Budzinski, Stefan Szymanski, Are restrictions of competition by sports associations horizontal or vertical in nature? (2015) Journal of Competition Law & Economics, Volume 11, Issue 2, 409-429

Phinney Disseldorp, Voetballers niet langer te koop!? : Over een verbod op Third Party Ownership (2015) Tijdschrift voor sport & recht, Issue 1, 1-7

Geoff Pearson, Sporting Justifications under EU Free Movement and Competition Law: The Case of the Football ‘Transfer System’ (2015) European Law Journal, Volume 21, Issue 2, 220–238

Ben Van Rompuy, The Role of EU Competition Law in Tackling Abuse of Regulatory Power by Sports Associations (2015) Maastricht Journal of European and Comparative Law, vol. 22, issue. 2, 179-208

Nicolaides Phedon, A Critical Analysis of the Application of State Aid Rules to Sport (2015) Maastricht Journal of European and Comparative Law, vol. 22, issue. 2, 209-223

Antoine Duval, The Court of Arbitration for Sport and EU Law: Chronicle of an Encounter (2015) Maastricht Journal of European and Comparative Law, vol. 22, issue. 2, 224-255

Richard Parrish, Article 17 of the FIFA Regulations on the Status and Transfer of Players: Compatibility with EU Law, (2015) Maastricht Journal of European and Comparative Law, vol. 22, issue. 2, 256-282

Jacob Kornbeck, The Stamina of the "Bosman" Legacy : The European Union and the Revision of the World Anti-Doping Code (2011-2013) (2015) Maastricht Journal of European and Comparative Law, vol. 22, issue. 2, 283-304

Anna Sabrina Wollman, Olivier Vonk & Gerard-René De Groot, Towards a Sporting nationality? (2015) Maastricht Journal of European and Comparative Law, vol. 22, issue. 2, 305-321

Stefano Bastianon, The Striani Challenge to UEFA Financial Fair-Play. A New Era after Bosman or Just a Washout? (2015) Competition Law Review, Volume 11 Issue 1, 7-39

Beverley Williamson, Premiership Rugby Union: Through the Antitrust Looking Glass (2015) Competition Law Review, Volume 11 Issue 1, 41-60

Oskar van Maren, The Real Madrid case: A State aid case (un)like any other? (2015) Competition Law Review, Volume 11 Issue 1, 83-108

SSRN Articles

Anastasios Kaburakis, Ryan M. Rodenberg, John T. Holden, Inevitable: Sports Gambling, State Regulation, and the Pursuit of Revenue (10 January 2015)

Ben Van Rompuy, The Odds of Match Fixing - Facts & Figures on the Integrity Risk of Certain Sports Bets (22 January 2015)

Craig Dickson, Complex Rules & Inconsistent Interpretation: Duty of Care and Causation in Collision Sports (27 February 2015)

Craig Dickson, Courtsiding' in Sport: Cheating, Sharp Practice or Merely Irritating? (13 March 2015)

Kyle Mulrooney, Katinka Van de Ven, ”Muscle Profiling”: Anti-Doping Policy and Deviant Leisure (23 March 2015) 

Antoine Duval, Ben Van Rompuy, The Compatibility of Forced CAS Arbitration with EU Competition Law: Pechstein Reloaded (23 June 2015)

Michele Giannino, Can Joint Sale Agreements for Exclusive Media Rights to Sport Events Amount to Abusive Conducts? The Simbia/CLT-UFA Case in Luxembourg (10 July 2015)

Dick Pound, Sports Arbitration: How it Works and Why it Works (16 June 2015)

Kathryn Henne, Reforming Global Sport: Hybridity and the Challenges of Pursuing Transparency (20 August 2015).

Kathryn Henne, Defending Doping: Performances and Trials of an Anti-Doping Program (20 August 2015).

Thomas Margoni, The Protection of Sports Events in the European Union: Property, Intellectual Property, Unfair Competition and Special Forms of Protection (August 29, 2015).

Teresa Scassa and Benoit Séguin, Ambush Marketing Legislation to Protect Olympic Sponsors: A Step Too Far in the Name of Brand Protection? (October 7, 2015).

Others:

Bulletin TAS/CAS Bulletin 2015/1

[1] This literature review would not have been possible without the precious support of our former intern Piotr Drabik.

[2] Only the articles deemed relevant from an international sports law perspective are listed here.

On 1 April 2015, the new FIFA Regulations on Working with Intermediaries (hereinafter referred as the Regulations) came into force. These Regulations introduced a number of changes as regards the division of competences between FIFA and its members, the national associations. A particularly interesting issue from an EU competition law perspective is the amended Article 7 of the Regulations. Under paragraph 3, which regulates the rules on payments to intermediaries (also previously referred to as ‘agents’), it is recommended that the total amount of remuneration per transaction due to intermediaries either being engaged to act on a player’s or club’s behalf should not exceed 3% of the player’s basic gross income for the entire duration of the relevant employment contract. In the case of transactions due to intermediaries who have been engaged to act on a club’s behalf in order to conclude a transfer agreement, the total amount of remuneration is recommended to not exceed 3% of the eventual transfer fee paid in relation to the relevant transfer of the player.

In other words, the new Regulations recommend a benchmark cap on the percentage of remuneration that an intermediary engaged in negotiations with a view to concluding an employment contract or a transfer agreement can receive for his/her service. From the perspective of an antitrust lawyer such a provision immediately rings a bell of a potential distortion of competition. The Association of Football Agents (AFA), the representative body of 500 football agents in England, contends in a complaint to the European Commission that Article 7(3) of the Regulations distorts competition under EU law. In this regard, the present blog post will analyse whether Article 7(3) of the Regulations infringes Article 101 of the Treaty on the Functioning of the European Union (TFEU). If so, what would be the possible justifications and which are the requirements that must be fulfilled in the case at hand.

The general rule

To begin with, Article 101(1) of the TFEU stipulates that the following shall be prohibited: “all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of completion within the internal market”.[1] Thus, in order to find an infringement of Article 101(1), it must be established that 1) the FIFA Regulations constitute a decision by an association of undertakings; 2) that Article 7(3) of the Regulations may affect trade between EU Member States; and 3) that Article 7(3) of the Regulations has as its object or effect the prevention, restriction or distortion of competition within the internal market.

Decision by an association of undertakings

Even though, the concept of ‘decision by an association of undertakings’ is not defined in the founding treaties of the European Union, this notion has been interpreted broadly by the Court of Justice of the European Union (CJEU).[2] In order to determine whether the FIFA Regulations are to be regarded as a decision of an association of undertakings within the meaning of Article 101(1) TFEU it has to be established that the members of FIFA are undertakings for the purpose of EU competition law and that FIFA constitutes an association of undertakings. In Piau it was settled that “…it is common ground that FIFA’s members are national associations, which are groupings of football clubs for which the practice of football is an economic activity. These football clubs are therefore undertakings within the meaning of Article 81 EC and the national associations grouping them together are associations of undertakings… ”.[3] Therefore, from the judgement of the Court of First Instance (now the General Court) it is plain that FIFA constitutes an association of undertakings within the meaning of Article 101(1) TFEU. As regards the concept of ‘decision’, the General Court declared that since players’ agents receive a fee on a regular basis for the provision of their service, this constitutes an economic activity which does not fall within the scope of the specific nature of sport as defined by the previous CJEU’s case-law.[4] Moreover, the Regulations adopted by FIFA are binding  on national associations members of FIFA and on clubs, players and their agents and thus those regulations constitute a decision by an association of undertakings within the meaning of Article 101(1) TFEU.[5] In addition, in a recent case, the CJEU adjudged that even a price recommendation, regardless of its exact legal status, may be regarded as constituting such a decision.[6] Therefore, from the abovementioned it follows that based on the proximity of the legal issues discussed in Piau and the main research question at hand, it is likely that the new FIFA Regulations will be deemed a decision by an association of undertakings for the purpose of Article 101(1) TFEU.

Effect on trade between Member States

According to the Commission guidelines on the effect on trade, it is the agreement or decision that must be capable of affecting trade between Member States. It implies that there must be an impact on cross-border economic activity and that it must be possible to foresee with a sufficient degree of probability that the decision may have direct or indirect, actual or potential influence on trade between EU countries.[7] Since the Regulations at hand bind all members of FIFA, including all 28 EU Member States, and concern intermediaries operating in every EU country, there is undoubtedly a potential effect on trade between Member States. As a result of the provisions under Article 7(3) of the Regulations on Working with Intermediaries, every football player or club’s agent in the EU will be potentially restricted to receive a remuneration under the specified recommended price cap. Therefore, the second condition under Article 101(1) TFEU is also fulfilled.

Object or effect the prevention, restriction or distortion of competition

Article 101(1) (a) TFEU lists “…directly or indirectly fix purchase or selling prices…” as an object by an agreement that constitutes a restriction on competition.[8] Further, the Commission has continuously interpreted recommended pricing as falling under the category of price fixing in the sense of Article 101.[9] In this line of reasoning, the CJEU stated that in order to establish that a recommendation constitutes price-fixing, account must be taken of three factors: 1) the common interest between the members of the association, 2) the nature of the recommendation and 3) the statutes of the association.[10] The same test was later applied also by the Commission in its Fenex Decision.[11] Furthermore, in its Guidelines on the applicability of Article 101 to horizontal co-operation agreements, the Commission has acknowledged that any standard terms containing provisions which influence the prices charged to customers, including recommended prices, would constitute a restriction of competition by object. The General Court has also confirmed that recommended rates may constitute indirectly a pricing system binding its members.[12] Therefore, Article 101(1) (a) TFEU has been interpreted by the Commission and the CJEU as capable of encompassing “recommended prices” under the scope of “price-fixing”.

As regards the content of Article 7(3) of the Regulations, it clearly recommends a 3% benchmark cap on the remuneration an intermediary may claim as a result of his/her service. Firstly, even though the provision recommends the percentage cap, the national football associations are bound to implement the Regulations at the national level and the decision of whether to impose the remuneration cap is ultimately determined by the football clubs and the players.[13] By being able to limit the percentage of the commission that an intermediary can receive for a certain transaction, the relevant participating clubs and football players will have the common interest to secure a bigger ‘piece of the pie’ for themselves. Secondly, the nature of the recommended cap, even though non-binding, is detailed, clear and specific. It also appears in a binding legislative document, which national associations are required to fully implement. Nonetheless, even if they decide not to apply the recommended price cap, clubs and players will still be inevitably influenced by such a recommendation in their business activities.[14] Therefore, indirectly the nature of Article 7(3) encourages national associations to follow the recommended limit on agents’ remuneration. Lastly, the statutes of FIFA (Articles 2, 5, 10 and 13), give the Association the competence to draw up regulations and ensure their enforcement, regulate the transfer of players and oblige its members to fully comply with its regulations. As a consequence, even though the remuneration cap is a recommendation by FIFA it is highly likely that de facto this provision will lead to a coordinated behaviour among clubs and players as regards limiting the maximum payment that an intermediary can receive.

Typically, agents receive between 5-10% of their player’s gross income, so the limit of 3%, if enforced, would be a serious damaging shift for agents from a financial perspective as well.[15] Moreover, Article 7(3) of the Regulations constitutes a measure that could also be detrimental to the players and the quality of service that they receive. Due to the price cap, intermediaries will be discouraged to compete and improve. The goal of players’ having experienced and professional agents, who provide a high quality of services, is to assist and guide athletes in achieving the best possible deal in usually considered short careers.[16] As a result, the benchmark cap enshrined in Article 7(3) has the object of distorting competition on the market of football intermediaries’ services by both limiting the amount of remuneration and by indirectly decreasing the quality of the provided services.

At national level, not only the AFA in the UK has contested the Regulations, but also recently, after a complaint lodged by Rogon Sport Management, the German District Court (Landgericht Frankfurt/Main) suspended the implementation of the national regulation adopted by the German Football Association (DFB) transposing the FIFA’s Regulations. The District Court ruled that the limit on agents’ commissions in player transfers constitutes and unlawful restriction on the right to provide services even though DFB was following the recommendations stipulated by FIFA.

In the alternative, even if a restriction by object cannot be established, Article 7(3) still has the effect of distorting competition under Article 101(1). The criteria establishing whether a decision by an association is restrictive by its effect include defining the relevant market and assessing the possibility to access it, while taking into account existing and new competitors.[17] It must also be appraised whether the decision restricts actual or potential competition that would have existed in its absence.[18] Concerning the present discussion, Article 7(3) of the Regulations applies on the market of football intermediaries’ services in the EU. There will be undoubtedly an effect on the behaviour of existing intermediaries since normally their remuneration has been 5-10% and now it will be capped to 3%. This amendment could have the possible effect of lowering the level of competition on the market, decreasing the quality of the provided services and possibly driving some intermediaries out of business. In the absence of the decision at hand, these effect on competition would be significantly less likely to occur. As a consequence, the decision of FIFA to recommend a restriction on the remuneration of football intermediaries will have the effect of distorting competition.

Therefore, from the abovementioned analysis it follows that the recommended remuneration cap of 3% falls under the scope of Article 101(1) TFEU and constitute a decision by an association which has effect on trade between Member States and which restricts competition within the internal market.

Possible Justification

Although, a restriction within the meaning of Article 101 has been established, it remains to be analysed whether such a restriction may be justified. In Wouters, the CJEU held that not every decision of an association of undertakings which restricts the freedom of action of the parties necessarily falls within Article 101(1).[19] In order to apply this provision, account has to be taken of the overall context in which the decision was taken, its objectives. Subsequently, it has to be considered whether the consequential restrictive effects are inherent in the pursuit of those objectives.[20] In that context, it is important to verify whether the restrictions of competition are limited to what is necessary to ensure the implementation of legitimate objectives.[21] In other words, for a restriction to be justified, there must be a legitimate reason and the restrictive measure has to be necessary and proportionate for the achievement of the legitimate aim.

In Piau, the Regulation of Agents was justified as it aimed “to raise the professional and ethical standards for the occupation of players’ agent in order to protect players, who have a short career”.[22] In this case, the General Court ruled that the Commission did not err in its assessment by deciding that the licence system in place, which imposes qualitative rather than quantitative restrictions, seeks to protect players and clubs and takes into consideration the risks incurred by players in the event of poorly negotiated transfers.[23] Moreover, according to FIFA, the European Commission, EPFL and FIFPro, it is indisputable that the aim of the new Regulations is to enhance financial transparency related to players’ transfers and the protection of minor players. In this regard, even though the Commission or the CJEU has not yet decided upon the legitimacy of Article 7(3), it can be fairly assumed that the percentage cap, aiming to protect the exploitation of football players through enhanced financial transparency, can be considered as a legitimate aim.

Nevertheless, contrary to Piau, which concerned the licensing procedure of an agent, the present Article 7 stipulates a qualitative criterion rather a quantitative one. Furthermore, it is dubious whether such a recommended benchmark is suitable for achieving the legitimate aim of protecting football players. According to some commentators, it is foreseeable that the remuneration cap will lead to underhand, illegal payments so that intermediaries can maintain the level of compensation that they receive. As a result, intermediaries will further the very problem that FIFA intends to resolve by behaving in a manner that completely negates the primary purpose of the regulations. It can thus, lead to agents looking for new inventive ways to secure payment, for instance through higher percentage for work carried out in relation to the player’s commercial rights or signing longer representation contracts, which in turn  can also result in exploiting players. Some other negative effects may be the emergence of more persons involved in player transfers (lawyers, accountants or financial advisors), leading to less legal certainty and more disputes over the question who is liable for a certain transaction. Furthermore, a protection of minor players (Article 7) and ensuring financial transparency (Article 6) are already regulated in other provisions of the Regulations and thus a 3% cap seems to be redundant limitation towards the achievement of those goals.

Instead, other less restrictive possibilities for attaining the protection of football players are available. As proposed by AFA, a model of self-regulation and accreditation of intermediaries can be set up in co-operation with the national football associations.[24] By such a system, clubs and players could ensure themselves that an intermediary is of a particular standard, even though they would have the freedom to conclude a contract with those agents who do not fulfil a binding accreditation standard.[25] Such a system will not only be more preferred than the current FIFA’s Regulations but it will also be compatible with EU competition rules.[26] Other commentators consider that a more efficient option would be for FIFA not to cap agent fees but rather to strengthen existing ‘fit and proper’ enforcement measures to ensure global compliance with those standards. In this way, the fear expressed by FIFPro that “unnecessarily large amount of money disappears from professional football through agents” will be countered by stricter enforcement measures without restricting competition on the market. Another option for FIFA to avoid anti-competitive effects is for example, the publication of historical or survey-based price information by independent parties. Such regular publications might provide more trustworthy price guides reflecting the dynamics of the relevant market, enhance price transparency and at the same time avoid distortion of competition.

In any event, the measure in question appears to go beyond what is necessary. Typically agents receive between 5-10% of the player’s gross income and thus, a 3% recommended cap is seriously damaging the financial interests of intermediaries. Here, it ought to be mentioned that during the consultation process at FIFA’s Executive Committee, which led to the approval of the Regulations, all relevant stakeholders were present (member associations, clubs, FIFPro, professional football leagues, etc.) with the exception of any intermediaries’ representatives. Subsequently, the interests of agents were neglected during the discussion and the outcome was a stronger bargaining power granted to clubs and players in relation to transfers’ negotiations. This imbalance might lead to an asymmetry of information between agents and players and thus, to a distortion of the market. Further, not only is the content of Article 7(3) too strict but it is also too general and broad, encompassing all intermediaries and not foreseeing any exceptional circumstances. There is also no procedure in place, which allows agents to prove their qualifications and loyalty. As a result, even though an intermediary must have an impeccable reputation and is not allowed to charge minor football players, he/she is still presumed to be abusing his/hers powers and there is no mechanism allowing an intermediary to rebut this presumption.

Since, Article 7(3) of the Regulations does not satisfy the broad criteria for justification in Wouters and API, it is highly unlikely that it will pass through the narrow efficiencies test laid down in Article 101(3) TFEU. Hence, this assessment will not be analysed in this blog post.

Therefore, regardless of the fact that Article 7(3) of the Regulations serves a legitimate aim, it is dubious whether this particular measure is suitable for the achievement of the said goal and it is apparent that its restrictive effects go beyond what is necessary.

Conclusion

In this post, the potential negative effects of Article 7(3) of the FIFA Regulations on Working with Intermediaries on EU competition law were considered. It was concluded that pursuant to the Piau case and the Commission’s decisional practice, such a recommendation constitutes a decision of an association of undertakings which is capable of distorting competition within the meaning of Article 101(1). Next, it was analysed whether the legitimate reason of preventing the abusive practices of players’ exploitation can justify the restriction on competition. The author’s view is that a 3% cap on the commission granted to agents is not the most appropriate measure to do so and thus it constitutes a disproportionate restriction on EU competition rules.

[1] Consolidated version of the Treaty on the Functioning of the European Union (2012) OJ C326/01 art 101.

[2] Case C-309/99 Wouters and Others [2002] ECR I-1577 para 64; Case C-35/96 Commission v Italy [1998] ECR I-3851 para 60; A recommendation by an Association can also constitute a decision, see Case C 96-82 IAZ v Commission [1983] ECR 3369 paras 20-21.

[3] Case T-193/02 Piau v Commission [2005] ECR II-0209 para 69.

[4] Ibid, para 73.

[5] Case T-193/02 Piau v Commission [2005] ECR II-0209 para 75. See also Case C-45/85 Verband der Sachversicherer v Commission [1987] ECR 405 paras 29-32 and Case C-309/99 Wouters [2002] ECR I-1577 para 71.

[6] Case C-136/12 Consiglio nazionale dei geologi v Autorità garante della concorrenza e del mercato (ECJ 18 July 2013) para 46; See also Case C-45/85 Verband der Sachversicherer v Commission [1987] ECR 405 para 32.

[7] Ibid, paras 19-24.

[8] Consolidated version of the Treaty on the Functioning of the European Union (2012) OJ C326/01 art 101(1) (a).

[9] Belgian Architects’ Association [2005] OJ L4/10 paras 3 and 4; Case COMP/37.975 PO/Yamaha [2003] para 141; See also, a tariff recommendation issued by an Association of undertakings was considered to be anticompetitive in Fenex [1996] OJ L181/28 para 74.

[10] Case C-45/85 Verband der Sachversicherer v Commission [1987] ECR 405 paras 29-31.

[11] Fenex [1996] OJ L181/28 para 47.

[12] Joined Cases T-213/95 & T-18/96 Stichting Certificatie Kraanverhuurbedrijf (SCK) and Federatie van Nederlandse Kraanbedrijven (FNK) v Commission [1997] ECR II-1739 paras 159 and 161-164.

[13] See the text of Article 7 of the Regulations.

[14] See Fenex [1996] OJ L181/28 para 73.

[15] UEFA ‘Club Licensing Benchmarking Report 2012’ < http://www.uefa.org/MultimediaFiles/Download/Tech/uefaorg/General/02/09/18/26/2091826_DOWNLOAD.pdf> page 54.

[16] Case T-193/02 Piau v Commission [2005] ECR II-0209 para 102.

[17] Case C-234/89 Delimitis [1991] ECR I-0935 paras 14, 16 and 18.

[18] Ibid, para 19 and 21.

[19] Case C-309/99 Wouters and Others [2002] ECR I-1577 para 97.

[20] Ibid.

[21] Joined Cases C-184 to 187, 194, 195 & 208/13 API (CJEU 4 September 2014) para 48; Case C-519/04 P Meca-Medina [2006] ECR I-6991 para 47 and Case C-136/12 Consiglio nazionale dei geologi v Autorità garante della concorrenza e del mercato (ECJ 18 July 2013) para 54.

[22] Case T-193/02 Piau v Commission [2005] ECR II-0209 para 102.

[23] Ibid, para 100.

[24] Nick De Marco, ‘The New FA Football Intermediaries Regulations and the Disputes Likely to Arise’ (Blackstone Chambers, 27 April 2015) pages 13-14.

[25] Ibid.

[26] Ibid.

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 86^th 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.