The football world has been buzzing with Doyen’s name for a few years now. Yet, in practice very little is known about the way Doyen Sports (the Doyen entity involved in the football business) operates. The content of the contracts it signs with clubs was speculative, as they are subjected to strict confidentiality policies. Nonetheless, Doyen became a political (and public) scapegoat and is widely perceived as exemplifying the ‘TPOisation’ of football. This mythical status of Doyen is also entertained by the firm itself, which has multiplied the (until now failed) legal actions against FIFA’s TPO ban (on the ban see our blog symposium here) in a bid to attract attention and to publicly defend its business model. In short, it has become the mysterious flag bearer of TPO around the world. Thanks to a new anonymous group, inspired by the WikiLeaks model, we can now better assess how Doyen Sports truly functions. Since 5 November someone has been publishing different types of documents involving more or less directly the work of Doyen in football. These documents are all freely available at http://footballleaks.livejournal.com/. By doing so, the group has given us (legal scholars not involved directly in the trade) the opportunity to finally peruse the contractual structure of a TPO deal offered by Doyen and, as we purport to show in the coming weeks, to embark upon a journey into Doyen’s TPO-world.

The footballleaks group leaked two types of documents: documents related to the internal structure of Doyen and documents related to the various deals (involving mainly Portuguese and Spanish clubs and FC Twente) signed by Doyen. Regarding Doyen Sports itself as a company, the documents provide a good overview of its functioning and shareholder structure. The company based in Malta was registered in May 2011 and is controlled by two main shareholders, Refik Arif and Malik Ali. The aims of the company, based on its Memorandum and Articles of Association (point 1.1), include:

1.    Acquisition and sale of representation rights of football players, coaches and managers and representation of football players, coaches and managers in all aspects of their football career, including associated off-field and commercial activities (including, where necessary, through licensed agents);

2.     Acquisition and sale of football players and/or the economical rights of football players;

3.     Making an offer to the player for his player registration documentation, a part thereof or some other offer to the player and/or football clubs;

4.     Transferring football players, coaches and managers between different football clubs;

5.     Representing football clubs;

6.     Having a benefit or take an active role in the day-to-day running of football clubs, subject to complying with the FIFA Regulations and other relevant national or international regulations;

7.     Granting loans to football clubs; and

8.     Carry out such activities as may be ancillary to the above or as may be necessary or desirable to achieve the above objects without territorial restriction anywhere in the world. 

Thus, Doyen’s business model blends different types of activities: investment and loans to clubs (broadly speaking the TPO side of Doyen’s activities) and the representation of players/coaches (the agent side of Doyen’s activities). We will not investigate further the internal structure of Doyen or its shareholders; such enquiries are better left to investigative journalists.

We, for our part, are going to focus on the contracts signed by Doyen with two clubs: FC Twente (Twente) and Sporting Club Portugal (Sporting). This analytical and descriptive exercise will feed into an evaluation of the compatibility of FIFA’s TPO ban with EU law. While it is difficult to know who precisely is responsible for footballleaks (maybe the ideal of transparency should also apply to the group), one thing is sure: the group seems to have a keen interest in the activities of Sporting (and Portuguese clubs in general). The emergence of this website targeting in priority Doyen might be linked to the on-going dispute between Doyen and Sporting about the TPO agreement signed over the transfer of the player Marcos Rojo. The dispute has been heard in September by the CAS, which will render its award on the matter in the coming month(s). In any case, the documents released until now by footballleaks enable us to draw a detailed profile of the TPO deals struck by Doyen with Twente and Sporting. The deal between Doyen and Twente, and its legal ramifications, will be the subject of a first blog early next week. We will map the network of obligations to which Twente accepted to be subjected in return for Doyen’s capital injection in the club. The case stirred a public controversy in the Netherlands and already led to the departure of Twente’s President. The second blog will focus on Sporting and more precisely on the “Rojo” TPO-deal with Doyen and its legal implications. Based on these empirical studies of the structure and implementation of the TPO agreements struck by Doyen, we will revisit the crucial pending question of the compatibility of FIFA’s TPO ban with EU competition law.

Editor's note: This is the fourth part/act of our blog series on the Russian eligibility cases at the CAS ad hoc Division in Rio.

• Act I: Saved by the Osaka Déjà-Vu
• Act II: On being implicated 
• Act III: On being sufficiently tested

Act IV: On Bringing a sport into disrepute

Paragraph 2 of the IOC Decision: “The IFs will also have to apply their respective rules in relation to the sanctioning of entire NFs.” 

In paragraph 2 of its Decision, the IOC mentioned the possibility for IFs to “apply their respective rules in relation to the sanctioning of entire NF's”.This is exactly what the International Weightlifting Federation (IWF) did when it decided on 29 July 2016 to exclude the whole Russian Weightlifting Federation (RWF) from the Rio Olympics for having brought the sport into disrepute. Indeed, Article 12. 4 of the IWF Anti-doping Policy, foresees that:

“If any Member federation or members or officials thereof, by reason of conduct connected with or associated with doping or anti-doping rule violations, brings the sport of weightlifting into disrepute, the IWF Executive Board may, in its discretion, take such action as it deems fit to protect the reputation and integrity of the sport.”

The Russian Federation first disputed, to no avail, that there was sufficient legal basis in the IWF regulations for such a blanket ban. The Panel found that “Article 12.4 ADP constitutes a sufficient legal basis”.[1] Moreover, it added that the “power of the IWF Executive Board, in its discretion, to take such action as it deems fit to protect the reputation and integrity of the sport, was not challenged by RWF”.[2]

There were subsequently two main questions related to application of Article 12.4 ADP to be discussed:

• Based on the information available, could the IWF reasonably conclude that there was a “conduct connected with or associated with doping”?
• And, was it sufficient to “bring the sport of weightlifting into disrepute”?

First, the CAS Panel notes that in assessing whether there was a “conduct connected with or associated with doping”, IWF “referred to various sources of information”.[3] It relied on the IP Report that “submits that 117 Russian weightlifters were included in this centrally dictated program”[4] and “on the results from the retesting of the London and Beijing Olympics”[5], which “turned out nine AAFs for Russian weightlifters”.[6] The Panel held that this “information constitutes "conduct connected with or associated with doping"” that “on its face is sufficiently reliable”.[7] Indeed, it reminds that the IP Report applied a standard of proof of “beyond reasonable doubt”. Furthermore, the Panel adds that “the findings of the McLaren Report were taken seriously by the IOC and lead to the IOC Executive Board's decision dated 24 July 216 that enacted eligibility criteria specifically for Russian athletes, which is unique in the history of the Olympic Games”[8] and “were endorsed by WADA, the supreme authority in the world of sport to lead and coordinate the fight against doping and by other international federations, such as the IAAF”.[9] Finally, “the information contained in the Mclaren Report is also corroborated by the reanalysis of the athlete's samples at the London and Beijing Olympics”.[10] The fact that all nine Russian athletes retested were all positive for the same substance, Turniabol, is deemed “a strong indication that they were part of a centrally dictated program”.[11]

Are these findings enough to bring weightlifting into disrepute? For the Panel, disrepute “refers to loss of reputation or dishonour”.[12] It concluded that “the IWF's conclusion that the above facts bring the sport of weightlifting in disrepute is neither incompatible with the applicable provisions nor arbitrary”.[13] The Russian doping scandal is “one of the biggest doping scandals in sports history”, and “paired with the findings from the retesting of samples led the IWF to consider that the actions of the RWF and the Russian weightlifters brought the sport of weightlifting into disrepute, because it draws a picture of this sport as being doping infested”.[14] Thus, the CAS arbitrators consider that “the Applicant has failed to demonstrate that the IWF's conclusion that, based on the evidence before it, the conduct of the RWF brought the sport of weightlifting in disrepute, was unreasonable”.[15]

Lastly, the RWF brought forward the much-used ‘we were not the only ones!’ argument. Indeed, it highlighted that the “retesting of the London and Beijing samples has not only resulted in AAFs [Adverse Analytical Findings or positive doping test] for Russian athletes, but also revealed AAFs for other member federations”.[16] Yet, the Panel rebuked this argument by stating “that the situation in Russian weightlifting is - apparently - of a different dimension”, as it “has not been reported nor submitted that other member federations are involved in a centrally dictated and managed doping program”.[17] In this regard, it notes “the impressive number of 61 Russian weightlifters benefitted from the Disappearing Positive Methodology” and the fact “that the whole Russian delegation for the London Olympics was - according to the information provided - involved in doping”.[18]

Once again, an IF taking a strong stance and barring the whole Russian team to participate in the Rio Olympics is vindicated by the CAS.

[1] CAS OG 16/09 RWF v. IWF, para. 7.5.

[2] Ibid.

[3] Ibid., para. 7.10.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Ibid., para. 7.11.

[8] Ibid., para. 7.12.

[9] Ibid.

[10] Ibid.

[11] Ibid.

[12] Ibid., para. 7.13.

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] Ibid., para. 7.14.

[17] Ibid.

[18] Ibid.