Asser International Sports Law Blog

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The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

International and European Sports Law – Monthly Report – October 2020 - By Rhys Lenarduzzi

13. November 2020 Antoine Duval Blog, International Sports Law Cases, International Sports Law Material, International Sports Law Publications (0)
Editor’s note: Rhys Lenarduzzi is a final semester Bachelor of Law (LL.B) and Bachelor of Philosophy (B.Phil.) student, at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.


The Headlines

Aguero and Massey-Ellis incident: An Opportunity for Change and Education?

In mid-October a clip went viral of Argentinian star Sergio Aguero putting his hands on sideline referee, Sian Massey-Ellis. A heated debate ensued in many circles, some claiming that Aguero’s conduct was commonplace, others taking aim at the appropriateness of the action, around players touching official and a male touching a female with an unsolicited arm around the back, the squeeze and pull in. Putting the normative arguments aside for a moment, the irony of the debate was that all sides had a point. Football, almost exclusively, has grown a culture of acceptance for touching officials despite the regulations. Male officials who have let such conduct slide, have arguably let their female colleague down in this instance.

Whilst a partial defence of Aguero might be that this kind of conduct takes place regularly, the incident could serve as a learning experience. If Massey-Ellis’ reaction was not enough, the backlash from some of the public might provide Aguero and other players the lesson, that touching a woman in this way is not acceptable.

Returning to football, the respect and protection of officials in sport, the key here appears to be cracking down on touching officials entirely. This is not a foreign concept and football need only look at the rugby codes. Under no circumstances does the regulations or the culture permit that a player from the rugby codes touch a referee. It is likely the case that the obvious extra level of respect for officials in these sports derives from a firm culture of no touching, no crowding officials, communicating with officials through the team captain only, with harsh sanctions if one does not comply.

The Football Association of England has decided no action was necessary, raising questions of how seriously they take the safety of officials, and gender issues. This is ultimately a global football issue though, so the confederations or international bodies may need step in to ensure the protections that appear at best fragile.  


Rugby Trans issue

The World Rugby Transgender guideline has been released and contains a comprehensive unpacking of the science behind much of the regulatory framework. Despite many experts applauding World Rugby on the guidelines and the extensive project to reach them, the England Rugby Football Union is the first to defy the World Rugby ruling and transgender women will still be allowed to play women’s rugby at all non-international levels of the game in England for the foreseeable future. This clash between national bodies and the international body on an important issue is concerning and will undoubtedly be one to keep an eye on.

 

CAS rejects the appeal of Munir El Haddadi and the Fédération Royale Marocaine de Football (FRMF)

The refusal to authorise a footballer to change national federation is in the headlines with the CAS dismissing the appeal of the player and Moroccan federation, confirming the original determination of the FIFA Players’ Status Committee.

This has been given considerable recent attention and seemingly worth following, perhaps best summed up by FIFA Director of Football Regulatory, James Kitching, where in a tweet he notes: “The new eligibility rules adopted by the FIFA Congress on 18 September 2020 have passed their first test. We will be publishing our commentary on the rules in the next fortnight. Watch this space.”

 

 

Major International Sports Law Decisions

CAS Decisions (September)

 

Official Documents and Press Releases

CAS

FIFA

FIFPro

IOC

UEFA

WADA

World Athletics

Other Civil Society Organizations/Unions

  • Asian Racing Federation council on anti-illegal betting & related financial crime – Quarterly Bulletin

 

In the News

Rugby

Doping

eSports 

Gymnastics

Other

 

Academic Materials

International Sports Law Journal

Oxford Human Rights Law Review

 

Blog

Asser International Sports Law Blog

 Law in Sport

Play the Game

Sport Integrity Initiative 

 

Podcasts

LawInSport

Play On the Morgan Sports Law Podcast

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Asser International Sports Law Blog | International and European Sports Law – Monthly Report – February 2020 - By Thomas Terraz

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

International and European Sports Law – Monthly Report – February 2020 - By Thomas Terraz

24. March 2020 Antoine Duval International Sports Law Cases, International Sports Law Commentaries, International Sports Law Events, International Sports Law Material, International Sports Law Publications (0)

Editor's note: This report compiles the most relevant legal news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. 

 

The Headlines

Manchester City sanctioned by UEFA’s Financial Fair Play

Manchester City has been sanctioned under UEFA’s Financial Fair Play (FFP) regulations for two seasons for ‘overstating its sponsorship revenue in its accounts and in the break-even information’ it had provided UEFA. The February 14 decision of the Adjudicatory Chamber of the Club Financial Control Body (CFCB) likely heralds the start of a long and bitter legal war between Manchester City and UEFA, which may end up settling many of the questions surrounding the legality of FFP rules. Since its introduction in 2010, the compatibility of FFP with EU law, especially in terms of free movement and competition law, has been a continued point of contention amongst the parties concerned and commentators (see discussion here, here and here). It was only a matter of time that a case would arise to test this issue and the present circumstances seem to indicate that this may go all the way.                                 

Regardless, the ban will not be enforced this season and in light of the appeal process, it is hard to predict when the CFCB’s decision will have any effect. Indeed, Manchester City has shown an incredible willingness to fighting this out in the courts and shows no signs of backing down. The next stop will be the CAS and perhaps followed by the Swiss Federal Tribunal. It should also be recalled that the CAS has already examined FFP in its Galatasaray award, where it found FFP compatible with EU law (see commentary here). There is even a decent chance that this emerging saga may end up in front of the European Commission and eventually the Court of Justice of the European Union.

Sun Yang CAS award published

After a much-anticipated public hearing, the Panel’s award in the Sun Yang case has finally been published, sanctioning Sun Yang with an eight-year period of ineligibility (see here for a detailed commentary). The decision does not reveal anything groundbreaking in terms of its legal reasoning and in many ways the case will most likely be remembered for its historical significance: the case that jumpstarted a new era of increased public hearings at the CAS.

Perhaps of some interest is the extent to which the panel took into account Sun Yang’s behavior during the proceedings in order to support its assessment of the case. For example, the panel describes how Sun Yang had ignored the procedural rules of the hearing by inviting ‘an unknown and unannounced person from the public gallery to join him at his table and act as an impromptu interpreter’. The Panel interpreted this as Sun Yang attempting ‘to take matters into his own hands’ which it found resembled the athlete’s behavior in the case (see para 358). The Panel also found it ‘striking’ that Sun Yang did not express any remorse concerning his actions during the proceedings. Since the proceedings were held publicly and have been recorded, it is possible to verify the Panel’s assessment in this regard.

In the end, it is possible that Sun Yang may seek to reduce the period of ineligibility once the 2021 WADA Code comes into force (see para 368). For now, Sung Yang may also try to appeal the award to the Swiss Federal Tribunal on procedural grounds, and has already indicated his wish to do so.

 

Major International Sports Law Decisions

Recently Released CAS Decisions (since December 2019) where FIFA is a party:

  • CAS - CAS 2019/A/6278 Cruzeiro EC v. FIFA
  • CAS – CAS 2019 A 6276 Eskisehir Kulübü Dernegi v. Ruud Boffin & FIFA
  • CAS - CAS 2019 A 6345 Club Raja Casablanca v. FIFA
  • CAS - CAS 2019 A 6406 Football Association of Penang v. FIFA
  • CAS - CAS 2019 A 6268 Clube Atlético Mineiro v. FIFA
  • CAS - CAS 2018 A 5560 & 5650 Kuwait FA v. FIFA
  • CAS - CAS 2019 A 6027 Sociedade Esportiva Palmeiras v. FIFA 
  • CAS - CAS 2019 A 6305 Club Raja Casablanca v. FIFA
  • CAS - CAS 2017 O 5264 & 5265 & 5266 Miami FC & Kingston Stockade FC v. FIFA, CONCACAF & USSF
  • CAS - CAS 2019 A 6239 Cruzeiro EC v. FIFA


Official Documents and Press Releases

CAS

FIFA

IOC

WADA

Other

 

In the News

Football

Doping

Other

 

Academic Materials

International Sports Law Journal

Other

 

Blog

Asser International Sports Law Blog

Law in Sport

Play the Game

SportLegis

Upcoming Events

18-19 June 2020 – Sport & EU 2020 Annual Conference, Rijeka and Opatija, Croatia

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Asser International Sports Law Blog | “Sport Sex” before the European Court of Human Rights - Caster Semenya v. Switzerland - By Michele Krech

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

“Sport Sex” before the European Court of Human Rights - Caster Semenya v. Switzerland - By Michele Krech

22. March 2021 Antoine Duval Blog, International Sports Law Cases, International Sports Law Commentaries (0)

Editor's note: Michele Krech is a JSD Candidate and SSHRC Doctoral Fellow at NYU School of Law. She was retained as a consultant by counsel for Caster Semenya in the proceedings before the Court of Arbitration for Sport discussed above. She also contributed to two reports mentioned in this blog post: the Report of UN High Commissioner for Human Rights,  Intersection of race and gender discrimination in sport (June 2020); and the Human Rights Watch Report, “They’re Chasing Us Away from Sport”: Human Rights Violations in Sex Testing of Elite Women Athletes (December 2020).

This blog was first published by the Völkerrechtsblog and is republished here with authorization. Michele Krech will be joining our next Zoom In webinar on 31 March to discuss the next steps in the Caster Semenya case.



Sport is the field par excellence in which discrimination
against intersex people has been made most visible.

Commissioner for Human Rights, Council of Europe
Issue Paper: Human rights and intersex people (2015)


Olympic and world champion athlete Caster Semenya is asking the European Court of Human Rights (ECtHR) to make sure all women athletes are “allowed to run free, for once and for all”. Semenya brings her application against Switzerland, which has allowed a private sport association and a private sport court to decide – with only the most minimal appellate review by a national judicial authority – what it takes for women, legally and socially identified as such all their lives, to count as women in the context of athletics. I consider how Semenya’s application might bring human rights, sex, and sport into conversation in ways not yet seen in a judicial forum.

Background

Semenya, a South African national, competes in the sport of track and field, which is governed internationally by a private association, World Athletics, headquartered in Monaco. A few years ago, World Athletics introduced new Regulations barring women with innate variations of sex characteristics from competing in certain women’s events, unless they medically reduce their atypically high testosterone levels. Semenya first challenged the Regulations before the Court of Arbitration for Sport (CAS) – an international arbitral tribunal located in Switzerland and commonly known as the “supreme court of sport”. After the majority of the CAS panel upheld the Regulations, Semenya appealed to Switzerland’s highest judicial authority, the Swiss Federal Tribunal (SFT), which dismissed her claim, leaving the Regulations – and “sport sex” – in place.

All the while, the UN Human Rights Council‘s independent experts and the UN High Commissioner for Human Rights, along with Human Rights Watch, the World Medical Association, and various organizations focused on women’s and LGBTQI+ equality in sport, have expressed serious concern that the Regulations contravene international human rights norms and standards. However, no court has squarely decided this question. The CAS panel measured the Regulations against the non-discrimination provisions of the World Athletics Constitution and the Olympic Charter (para. 424), finding it unnecessary to delve into the “detailed principles” of “international human rights law including those that apply in Monaco … and the domestic laws of many countries in which [World Athletics] has members and holds international competitions” (para. 544). Whether the Regulations were contrary to such laws was deemed a matter for the courts of those jurisdictions to decide (para. 555). But because the CAS decision is an international arbitral award, the SFT was restricted, pursuant to the Federal Statute on Private International Law, to reviewing only one substantive ground of appeal: whether the CAS decision was compatible with Swiss public policy (i.e. the most fundamental values that, according to prevailing opinions in Switzerland, should form the basis of any legal order). As the SFT explained, while the principles underpinning the Swiss Constitution or the European Convention of Human Rights (ECHR) could be considered when defining public policy, the provisions of these instruments could not be directly invoked to challenge the CAS decision (paras. 9.1 to 9.2).

The ECtHR’s consideration of Semenya’s application will therefore mark the first time a court evaluates the private regulations of World Athletics (and, particularly, the role of Switzerland in upholding them) against international human rights law. It may also mark the first time the ECtHR decides a case of discrimination based on sex characteristics. Given such novelty, what else might be new and different before the ECtHR compared to the past (quasi)judicial processes? I consider this question in two (intricately connected) parts – the facts and the law – where the ECtHR could play a remedial role.

The Facts: Sex before the ECtHR

The CAS panel characterized the case as one of “significant scientific complexity” and remarked on both the lack of consensus among experts and the “paucity of evidence” regarding certain matters concerning the effect of testosterone on the athletic performance (para. 582). The majority of the panel found, however, that the totality of the evidence provided adequate support for World Athletics’ claim that the women targeted by the Regulations “enjoy a significant performance advantage over other female athletes, which is of such magnitude as to be capable of subverting fair competition within the female category” (para. 538). This finding was also central to decision of the SFT, which was bound to rule based on the facts found by the CAS. The SFT made clear that, pursuant to its own constitutive law, it could not correct or supplement the arbitrators’ findings, even if the facts had been established in a manifestly incorrect manner or in violation of the law (para. 5.2.2).

Meanwhile, abundant scholarly critiques have been registered against World Athletics’ evidence, ranging from the methodologies used to the conclusions drawn. Moreover, much of this evidence was produced “in-house” by World Athletics; the leaders of its own Health and Science Department conducted the main scientific study relied on to justify the Regulations. Without delving deeper into this apparent lack of independence, it is notable that the conflated “scientific” and “legislative” process here is a private one; no Swiss public authority sought evidence to inform or evaluate the regulatory decision at issue.

To what extent, then, might the ECtHR reassess the evidence? While the Court was not set up as a court of first or fourth instance – that is, to establish the basic facts of a case or to re-evaluate the facts established by a domestic court – it does require parties to substantiate their claims, and is free to assess the admissibility, relevance, and probative value of the evidence put forth. The Court may request additional evidence, draw inferences from the absence of evidence, and even engage in fact-finding if the evidence is contested or unclear. To resolve uncertainty, the Court may rely on evidence from external actors, including experts and academics, as well as a wide variety of third-party interveners.

Considering this range of evidence would reveal that understandings of sex in athletics cannot be detached from understandings of sex beyond the sports sphere. Indeed, sport has been shown to be especially effective at disguising and transmitting socio-scientific ideologies – including those related to testosterone – as self-evident truth. While there are limits to the ECtHR’s ability to decide complex socio-scientific questions, it need not accept factual findings made (tenuously) by the CAS and not by Switzerland. Moreover, it should become clear to the ECtHR that “science” cannot provide a definitive answer to the question before it; in fact, the (selective) way science has been deployed by World Athletics is at the very heart of the alleged human rights violations.

The Law: Sport before the ECtHR

A number of rights guaranteed by the ECHR are pertinent in Semenya’s case. Most obvious is Article 8, which encompasses the right to personal autonomy and identity, including physical, psychological, and moral integrity. The “impossible choices” and documented harms inherent in the Regulations clearly interfere with this right. In addition, Article 14 requires member States to secure to everyone within their jurisdiction all Convention rights “without discrimination on any ground”. The Regulations apply only to women with certain sex characteristics (which the Commissioner for Human Rights has said fall under sex as a prohibited ground of discrimination) and arguably exhibit racial and regional bias.

Whatever Convention rights are invoked, the ECtHR will have to decide whether any infringement is legally justifiable. To begin, any potential infringement of Article 8 must be “in accordance with the law” – that is, it must have some basis in domestic law. However, unlike antidoping rules enacted by public authorities – which the ECtHR has held meet this test – the Regulations at issue in Semenya’s case are not part of Swiss law or based on any international treaty. Switzerland will therefore be in the strange position of defending Regulations enacted by a private association located in Monaco.

In this regard, Switzerland will have to establish that the Regulations pursue one of the legitimate aims identified in the ECHR. The ECtHR has previously recognized “fair play and equality of opportunity” in sport as constituting such an aim. More critically, however, Switzerland will have to establish that the Regulations are “necessary in a democratic society” to achieve this aim. In addition to the evidentiary shortcomings discussed already, it is not clear that the Regulations serve a “pressing social need” like antidoping “whereabouts” rules do, according to the ECtHR. The need for the latter was based on abundant State-adduced evidence that doping harms the physical and mental health of athletes and sets a dangerous example for youth. The “danger” that Switzerland is seeking (or allowing World Athletics) to avoid in Semenya’s case is much less apparent. In fact, it is Semenya and other athletes targeted by the Regulations, as well as the youth that look up to them, that are put most at risk.

It therefore cannot be said that the ECtHR has established a blanket principle that the pursuit of fairness can justify serious infringements of athletes’ rights, as the SFT implied in its decision (para. 9.8.3.3). Surely mandating medically unnecessary drug use (or surgery) for certain athletes, as a condition of eligibility for the female category of competition, is not analogous to prohibiting it (with therapeutic use exemptions) for all athletes.

In any case, the ECtHR’s practice is to “balance” individual interests and the interests of the community as a whole. But who makes up the relevant community? The majority of the CAS panel found, for example, that because of “constraints on the [its] competence and role” it was neither necessary nor appropriate for it to consider “the possible wider impact” of the Regulations outside the “segment of society” governed by World Athletics (para. 589). However, it is not just Semenya’s athletic career, but her entire life, that is affected by the Regulations. Likewise, it is not just elite women athletes without intersex traits who comprise the community with interests at stake (and little evidence has been adduced to characterize these interests). A much broader community may have an interest in seeing the unhindered potential of every athlete on display, and the whole of the LGBTQI+ community may have an interest in avoiding the stigmatization that flows from mandatory “normalization” procedures in any sphere of life. The fact that sport is “a massively visible social practice, extensively relayed worldwide” makes it all the more important which community or communities are counted and valued in the Court’s assessment.

Finally, the scope of the relevant community will also be important to the ECtHR’s consideration of whether there is a relevant European consensus, which in turn informs how great a “margin of appreciation” (i.e. degree of deference) is to be granted to Switzerland. There may be a common European approach reflected in the calls of the Commissioner for Human Rights and the Parliamentary Assembly to end medically unnecessary sex-“normalizing” interventions without free and fully informed consent. When it comes to sport eligibility rules, though, it could be said that the common approach is to defer to private international governing bodies like World Athletics. But any such “consensus by omission” only highlights the structural failure of States to uphold – proactively, where necessary – human rights in the context of sport. Indeed, World Athletics’ Regulations prevent any consensus (or lack thereof) from emerging among States by restricting athletes’ access to domestic courts. Therefore, Switzerland – as the home of the CAS – and the SFT – as the judicial authority with exclusive jurisdiction to review CAS awards – would seem to have a unique responsibility to secure the human rights of athletes. In other words, because Switzerland is effectively speaking for a worldwide community, its margin of appreciation should be very narrow.

When it comes time for the ECtHR to consider the merits of Semenya’s application, it will have to decide whether the paradoxical concept of “sport sex“, as upheld by the SFT, can be sustained in accordance with the ECHR. The limitations of the judicial processes to date point to the potential – if not the promise – of the ECtHR to (re)consider the full range of facts and to directly apply human rights law within athletics. Whatever the ECtHR decides, its decision will have significant implications far beyond both Switzerland and sport.

 

The author gratefully acknowledges Gráinne de Búrca, Antoine Duval, Katrina Karkazis, and Gabriele Wadlig for their input on this piece.

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Asser International Sports Law Blog | Call for papers: ISLJ Annual Conference on International Sports Law - 26-27 October 2017

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Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Call for papers: ISLJ Annual Conference on International Sports Law - 26-27 October 2017

12. April 2017 Antoine Duval International Sports Law Events (0)

The editorial board of the International Sports Law Journal (ISLJ) is very pleased to invite you to submit abstracts for its first Annual Conference on International Sports Law. The ISLJ, published by Springer in collaboration with ASSER Press, is the leading publication in the field of international sports law. Its readership includes both academics and many practitioners active in the field. On 26-27 October 2017, the International Sports Law Centre of the T.M.C. Asser Instituut and the editorial board of the International Sports Law Journal will host in The Hague the first ever ISLJ Annual Conference on International Sports Law. The conference will feature panels on the Court of Arbitration for Sport, the world anti-doping system, the global governance of sports, the FIFA transfer regulations, comparative sports law, and much more.


Abstracts could, for example, tackle questions linked to the following international sports law subjects:

  • The interaction between EU law and Sport 
  • International sports arbitration (CAS, BAT, etc.)
  • The functioning of the world anti-doping system (WADA, WADC, etc.)
  • The global governance of sport
  • The regulation of mega sporting events (Olympics, FIFA World Cup)
  • The international regulation of football (FIFA Regulations on the Status and Transfer of Players and UEFA Financial Fair play Regulations)
  • The global fight against corruption in sport
  • Comparative sports law

Your abstract (no more than 300 words) and your CV should be sent no later than 15 May 2017 to Antoine Duval. Selected speakers will be informed by 30 May.

The ASSER Institute will offer one night accommodation for the speakers and will provide a limited amount of travel grants. If you wish to be considered for a grant please provide an explanation in your submission.

ISLJ Awards: The three best papers of the conference will receive an ISLJ award and their authors will be given the opportunity to publish them in the ISLJ.


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Asser International Sports Law Blog | UEFA Financial Fair Play Regulations Put PSG and Manchester City on a Transfer Diet

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

UEFA Financial Fair Play Regulations Put PSG and Manchester City on a Transfer Diet

2. September 2014 Antoine Duval Blog, International Sports Law Commentaries (0)

The main lesson of this year’s transfer window is that UEFA’s Financial Fair Play (FFP) rules have a true bite (no pun intended). Surely, the transfer fees have reached usual highs with Suarez’s move to FC Barcelona and Rodriguez’s transfer from AS Monaco to Real Madrid and overall spending are roughly equal to 2013 (or go beyond as in the UK). But clubs sanctioned under the FFP rules (prominently PSG and Manchester City) have seemingly complied with the settlements reached with UEFA capping their transfer spending and wages.

 

FFP's Transfer Diet

PSG’s summer of impuissance

It was widely expected, and trumpeted, that PSG and Manchester City would disregard the transfer restrictions imposed on them. Besides all the talking and the costly recruitment of David Luiz for nearly 50M€ earlier this summer, PSG’s transfer activity was limited to Serge Aurier’s arrival on loan from modest Toulouse. Moreover, the talks over Di Maria’s move to PSG faltered over the inability of the French club to pay a transfer fee due to the FFP constraints. Thus, PSG was forced into relative thrift by the FFP rules, a remarkable achievement in itself. This has recently triggered widespread critique against UEFA and FFP by PSG officials.

 

Manchester City overtaken by Manchester United

Even though Manchester City has largely dominated the transfer contest against its arch-rival over the latest years, this balance has dramatically tilted during this summer. United was able to attract a number of high-ranked and expensive players, most notably Di Maria for the total sum of 66M€ (more than City’s total spending). In a final transfer twist, United was even able to snap away Falcao from City apparently due to FFP concerns.  City did not engage in the usual frenzy spending spree of the previous years. It did spend around 60 M€ (and racked in 25M€ in transfer fees), but this number pales in regard to the 116M€ spent in 2013. Here again, despite talks to the contrary and vouching to disregard UEFA’s FFP rules, one cannot ignore the toll taken by them on the capacity of Manchester City to outrageously dominate the UK transfer market.

  

 

 

The general timidity of FFP culprits

This is not an isolated development. Other clubs concerned by FFP settlements have followed a similar path (see graph below). In general, clubs sanctioned under FFP rules have reduced their transfer spending in comparison to previous years. More surprisingly, big players like PSG and Manchester City have complied with the net transfer limit of 49M€ imposed on them in the settlement. This points at an apparent success of the FFP regulations, which have not materialised, as many feared, as a public relations exercised in the guise of a toothless regulation. The rules have a real-world impact, and in spite of the high profiles of certain clubs concerned those have felt the urge to internalize them reinforcing UEFA’s claim that FFP is a serious regulation. As will be shown below, however, this also supports the claims that FFP regulations constitute a restriction on competition in need of adequate justification.


 


New strategies to bypass FFP rules 

This development has also led clubs to devise bypassing strategies to the FFP rules. The first strategy is to use loans as temporary or differed transfers by including a mandatory transfer clause in the contract. This is the solution adopted by PSG in the transfer of Serge Aurier from Toulouse. In a way there is no reason why this should not be considered as a new liability for accounting purposes, as it is akin to a delayed payment but not to a delayed transfer. Finally, there is the possibility of using affiliated clubs to store the long-term liabilities (wages and fees), while getting a player on short-term loans. This is likely the strategy used by Manchester City in the now infamous recruitment of Frank Lampard from its sister club New York City FC. Hence, one should not underestimate the ability of clubs to sidestep the FFP rules, albeit a way more difficult and protracted transfer game as before.

 

FFP’s compatibility with EU competition law still a threat

Does this real-world efficacy change anything to the assessment of FFP’s compatibility with EU competition law? Not really. On the one hand, it is all the more evident that the FFP rules have a restraining effect on free competition; certain economic actors are undoubtedly not free to invest their money, as they would see fit. On the other hand, the real test for evaluating the FFP’s compatibility with EU law is the Wouters/Meca-Medina proportionality test developed by the EU Court. First of all UEFA will have to identify the legitimate objective it intends to pursue with these regulations. This is likely to be good corporate governance, as one cannot consider that FFP rules improve the competitive balance by reducing the inequality between clubs in the absence of any redistributive effects. Actually, FFP will most likely sclerotize the pre-existing hierarchies. If good corporate governance in football is deemed a worthy objective (it probably will), the next question will be: are these regulations a proportionate mean to achieve it? At this stage UEFA will need to explain why the existing national bankruptcy frameworks are inadequate for this purpose (due, for example, to the political influence of clubs like in Spain, or to the particular feature of football competition that cannot tolerate the vagaries of a normal bankruptcy process), but also why the existing debt stock is not taken into account by the rules. Here, the brunt of the socio-political debate on the need of FFP will unfold.

 

As UEFA’s FFP rules strengthen their grip over clubs, they will be more and more incentivized to contest the rules in front of the EU Commission (PSG and Manchester City fans have recently submitted a complaint) or national tribunals. Thus, these questions will not remain hypothetical and will have to be met by UEFA with hard facts and convincing arguments. If not the FFP rules will be remembered as an ephemeral, though remarkable, interlude of the summer 2014.

 

Clubs

Amount spend on transfers in 2010 (in millions)

2011

2012

2013

2014

Manchester City

€182.45

€96.05

€61.95

€116.0

€65.5

PSG

€9.0

€107.1

€149.45

€135.9

€49.5

Galatasaray

€29.5

€23.6

€30.05

€41.84

€15.75

Trabzonspor

€7.9

€24.45

€8.06

€4.7

€29.11

Bursaspor

€1.38

€10.2

€3.66

€2.33

€1.8

FC Zenit

€43.0

€16.2

€103.76

€32.8

€22.8

Rubin Kazan

€43.6

€23.35

€29.0

€25.1

€8.0

FC Anzhi

€31.2

€84.5

€67.9

€59.4

€0

Levski Sofia

€0.8

€0.95

€1.25

€0.59

€0.05

 Data from transfermarkt.com






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