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

Unpacking Doyen’s TPO Deals – Sporting Lisbon’s rebellion in the Rojo case. By Antoine Duval and Oskar van Maren

In this blog we continue unpacking Doyen’s TPO deals based on the documents obtained via footballleaks. This time we focus on the battle between Doyen and Sporting over the Rojo case, which raises different legal issues as the FC Twente deals dealt with in our first blog.

 

I.              The context: The free-fall of Sporting

Sporting Lisbon, or Sporting Club de Portugal as the club is officially known, is a Portuguese club active in 44 different sports. Although the club has the legal status of Sociedade Anónima Desportiva, a specific form of public limited company, it also has over 130.000 club members, making it one of the biggest sports clubs in the world.

The professional football branch of Sporting is by far the most important and famous part of the club, and with its 19 league titles in total, it is a proud member of the big three cartel, with FC Porto and Benfica, dominating Portuguese football. Yet, it has not won a league title since 2002. More...

Unpacking Doyen’s TPO Deals: FC Twente's Game of Maltese Roulette. By Antoine Duval and Oskar van Maren

The first part of our “Unpacking Doyen’s TPO deals” blog series concerns the agreements signed between Doyen Sports and the Dutch football club FC Twente. In particular we focus on the so-called Economic Rights Participation Agreement (ERPA) of 25 February 2014. Based on the ERPA we will be able to better assess how TPO works in practice. To do so, however, it is necessary to explore FC Twente’s rationale behind recourse to third-party funding. Thus, we will first provide a short introduction to the recent history of the club and its precarious financial situation. More...

Unpacking Doyen’s TPO deals - Introduction

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. More...

Book Review: Questioning the (in)dependence of the Court of Arbitration for Sport

Book Review: Vaitiekunas A (2014) The Court of Arbitration for Sport : Law-Making and the Question of Independence, Stämpfli Verlag, Berne, CHF 89,00

The book under review is the published version of a PhD thesis defended in 2013 by Andrew Vaitiekunas at Melbourne Law School. A PhD is often taking stock of legal developments rather than anticipating or triggering them. This was definitely not the case of this book. Its core subject of interest is the study of the independence of the Court of Arbitration for Sport (CAS) – an issue that has risen to prominence with the recent Pechstein ruling of January 2015 of the Oberlandesgericht München. It is difficult to be timelier indeed. More...



The Court of Arbitration for Sport after Pechstein: Reform or Revolution?

The Pechstein ruling of the Oberlandesgericht (OLG) München rocked the sports arbitration world earlier this year (see our initial commentary of the decision here and a longer version here). The decision has been appealed to the German Bundesgerichtshof (BGH), the highest German civil court, and the final word on the matter is not expected before 2016. In any event, the case has the merit of putting a long-overdue reform of the Court of Arbitration for Sport (CAS) back on the agenda. The last notable reform of the structure and functioning of the CAS dates back to 1994, and was already triggered by a court ruling, namely the famous Gundel case of the Swiss Federal Tribunal (SFT). Since then, the role of the CAS has shifted and its practical significance has radically changed (the growth of CAS’s caseload has been exponential). It has become the most visible arbitration court in Switzerland in terms of the number of awards appealed to the SFT, but more importantly it deals with all the high-profile disputes that arise in global sport: think, for instance, of Pistorius, the recent Dutee Chand decision or the upcoming FIFA elections.More...

Sports governance 20 years after Bosman: Back to the future… or not? By Borja García

Editor's note:

Dr Borja García joined the School of Sport, Health and Exercise Sciences at Loughbourough University in January 2009 as a Lecturer in Sport Management and Policy. He holds a PhD in Politics, International Relations and European Studies from Loughborough University (United Kingdom), where he completed his thesis titled ‘The European Union and the Governance of Football: A game of levels and agendas’.

 

In this leafy and relatively mild autumn, we are celebrating two important anniversaries. Recently, we just passed ‘Back to the Future day’, marking the arrival of Marty McFly to 2015. In a few weeks, we will be commemorating the 20th anniversary of the Bosman ruling. Difficult to decide which one of the two is more important. As we move well into the 21st century’s second decade, these two dates should mark a moment to consider innovation. They are perhaps occasions to take stock and reflect how much sport has evolved to reach this new future… or not. More...


The 2006 World Cup Tax Evasion Affair in Germany: A short guide. By Gesa Kuebek

Editor's note:

Gesa Kuebek holds an LLM and graduated from the University of Bologna, Gent and Hamburg as part of the Erasmus Mundus Master Programme in Law and Economics and now work as an intern for the Asser Instituut.


On Monday, 9 November, the German Football Association (DFB) announced in a Press Release the resignation of its head, Wolfgang Niersbach, over the 2006 World Cup Affair. In his statement, Niersbach argued that he had “no knowledge whatsoever” about any “payments flows” and is now being confronted with proceedings in which he was “never involved”. However, he is now forced to draw the “political consequences” from the situation. His resignation occurred against the backdrop of last week’s raid of the DFB’s Frankfurt headquarters and the private homes Niersbach, his predecessor Theo Zwanziger and long-standing DFB general secretary Horst R. Schmidt. The public prosecutor’s office investigates a particularly severe act of tax evasion linked to awarding the 2006 World Cup. The 2006 German “summer fairy-tale” came under pressure in mid-October 2015, after the German magazine “Der Spiegel” shocked Fußballdeutschland by claiming that it had seen concrete evidence proving that a €6.7 million loan, designated by the FIFA for a “cultural programme”, ended up on the account of Adidas CEO Robert-Louis Dreyfuß. The magazine further argued that the money was in fact a secret loan that was paid back to Dreyfuß. Allegedly, the loan was kept off the books intentionally in order to be used as bribes to win the 2006 World Cup bid. The public prosecutor now suspects the DFB of failing to register the payment in tax returns. German FA officials admit that the DFB made a “mistake” but deny all allegations of vote buying. However, the current investigations show that the issues at stakes remain far from clear, leaving many questions regarding the awarding of the 2006 World Cup unanswered.

The present blog post aims to shed a light on the matter by synthetizing what we do know about the 2006 World Cup Affair and by highlighting the legal grounds on which the German authorities investigate the tax evasion. More...




Blog Symposium: Ensuring proportionate sanctions under the 2015 World Anti-Doping Code. By Mike Morgan

Introduction: The new WADA Code 2015
Day 1: The impact of the revised World Anti-Doping Code on the work of National Anti-Doping Agencies
Day 2: The “Athlete Patient” and the 2015 World Anti-Doping Code: Competing Under Medical Treatment
Day 3: Proof of intent (or lack thereof) under the 2015 World Anti-Doping Code

Editor's note
Mike Morgan is the founding partner of Morgan Sports Law LLP. His practice is focused exclusively on the sports sector. He advises on regulatory and disciplinary issues and has particular experience advising on doping and corruption disputes.

Mike acted on behalf of National Olympic Committees at three of the last four Olympic Games and has represented other sports bodies, clubs and high profile athletes in proceedings before the High Court, the FIFA Dispute Resolution Chamber, the American Arbitration Association and the Court of Arbitration for Sport. More...






Blog Symposium: Proof of intent (or lack thereof) under the 2015 World Anti-Doping Code. By Howard L. Jacobs

Introduction: The new WADA Code 2015
Day 1: The impact of the revised World Anti-Doping Code on the work of National Anti-Doping Agencies
Day 2: The “Athlete Patient” and the 2015 World Anti-Doping Code: Competing Under Medical Treatment
Day 4: Ensuring proportionate sanctions under the 2015 World Anti-Doping Code

Editor's note

Howard Jacobs is solo practitioner in the Los Angeles suburb of Westlake Village, California. Mr. Jacobs has been identified by various national newspapers and publications as one of the leading sports lawyers in the world. His law practice focuses on the representation of athletes in all types of disputes, with a particular focus on the defense of athletes charged with doping offenses.Mr. Jacobs has represented numerous professional athletes, Olympic athletes, world record holders,  and amateur athletes in disputes involving doping, endorsements, unauthorized use of name and likeness, salary issues, team selection issues, and other matters.  He is at the forefront of many cutting edge legal issues that affect athletes, winning cases that have set precedents that have benefited the athlete community. More information is available at www.athleteslawyer.com. More...





Blog Symposium: The “Athlete Patient” and the 2015 World Anti-Doping Code: Competing Under Medical Treatment. By Marjolaine Viret and Emily Wisnosky

Introduction: The new WADA Code 2015
Day 1: The impact of the revised World Anti-Doping Code on the work of National Anti-Doping Agencies
Day 3: Proof of intent (or lack thereof) under the 2015 World Anti-Doping Code
Day 4: Ensuring proportionate sanctions under the 2015 World Anti-Doping Code

Editor's Note
Marjolaine Viret: An attorney-at-law at the Geneva bar, specialising in sports and health law. Her doctoral work in anti-doping was awarded a summa cum laude by the University of Fribourg in early 2015. She gained significant experience in sports arbitration as a senior associate in one of Switzerland’s leading law firms, advising clients, including major sports federations, on all aspects of anti-doping. She also holds positions within committees in sports organisations and has been involved in a variety of roles in the implementation of the 2015 WADC. Her book “Evidence in Anti-Doping at the Intersection of Science & Law” is scheduled for publication in 2015.

Emily Wisnosky: An attorney-at-law admitted to the California bar, she currently participates in the WADC 2015 Commentary research project as a doctoral researcher. She also holds an LLM from the University of Geneva in International Dispute Settlement, with a focus on sports arbitration. Before studying law, she worked as a civil engineer. More...





Asser International Sports Law Blog | UEFA’s Financial Fair Play Regulations and the Rise of Football’s 1%

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’s Financial Fair Play Regulations and the Rise of Football’s 1%

On 12 January 2017 UEFA published its eighth club licensing benchmarking report on European football, concerning the financial year of 2015. In the press release that accompanied the report, UEFA proudly announced that Financial Fair Play (FFP) has had a huge positive impact on European football, creating a more stable financial environment. Important findings included a rise of aggregate operating profits of €1.5bn in the last two years, compared to losses of €700m in the two years immediately prior to the introduction of Financial Fair Play.



Source: UEFA’s eighth club licensing benchmarking report on European football, slide 107.


 Meanwhile the aggregate losses dropped by 81% from €1.7bn in 2011 to just over €300m in 2015.



Source: UEFA’s eighth club licensing benchmarking report on European football, slide 108.


 Furthermore, net debt as a percentage of revenue has fallen from 65% in 2009 to 40% in 2015.[1]



Source: UEFA’s eighth club licensing benchmarking report on European football, slide 125.


UEFA’s Financial Fair Play vindicated?

As was clear from the UEFA Club Licensing Benchmarking Report Financial Year ending 2011, the deficit of clubs with a UEFA License increased from €0.6 billion in 2007 to a peak of €1.7 billion in 2011, with some historic European football clubs, like FC Parma, going bankrupt. Though the increasing indebtedness might have been to a large extent related to the global economic crisis[2], UEFA considered that it was mainly the result of irresponsible spending by the clubs.[3] Consequently, UEFA introduced the FFP Regulations, whose objectives are, inter alia, improving the economic and financial capabilities of clubs; introducing more discipline and rationality in club football finances; encouraging clubs to operate on the basis of their own revenues; and protecting the long-term viability and sustainability of European club football. UEFA’s primary tool to achieve those is the break-even requirement imposed on clubs having qualified for a UEFA club competition.[4] Accordingly, clubs must demonstrate that their expenditure does not exceed their revenue  should they wish to avoid sanctions by the UEFA Club Financial Control Body.[5] With these objectives in mind, it does not come as a surprise that UEFA is celebrating in this report the success of the FFP regulations.


The negative side effect of FFP: The rise of the 1%

The FFP regulations are still facing controversy and legal challenges in spite of (or, maybe, because of) the results highlighted in this report. As early as 2012, critics pointed out that FFP could nurture the competitive imbalance between European football clubs. Basically, a successful club will yield more revenue, leading to the club being able to afford better players, in turn leading to the club being more successful, and so on and so forth. Since small clubs are no longer allowed to overinvest their way to a greater market size in the future, people predicted that FFP would trigger an era of competitive imbalance.[6] Indeed, this competitive imbalance was one of the primary arguments used by player agent Striani and his lawyer Dupont in their complaint to the European Commission.[7]

UEFA has so far successfully managed to withstand the legal challenges launched against the FFP rules, such as a Commission complaint, a preliminary reference to the Court of Justice of the EU, challenges in front of Belgian courts, a challenge in front of a French court, and a challenge in front of the Court of Arbitration for Sport. However, it is now forced to acknowledge that “the top 15 European clubs have added €1.51bn in sponsorship and commercial revenues in the last six years (148% increase), compared to the €453m added by the rest of the approximately 700 top-division clubs in Europe (17% increase)”.[8] UEFA is clearly concerned about the increasing gap between the “global super clubs” and the rest, though it is adamant that “overspending and unsustainable business models cannot be the answer to financial inequality”.[9]

Nonetheless, it is not completely fair to argue that by attempting to solve one problem (i.e. reducing the increasing debts of football clubs) UEFA single-handedly created another problem (i.e. the growing inequality between the global super clubs and the rest).[10] There are of course other factors that contributed to this increasing financial gap, most notably the discrepancies in incomes derived from the selling of media rights at national level. As can be seen in UEFA’s latest Benchmarking report, English Premier League clubs received an average of €108m for their media rights in 2015. This figure is considerably higher than other clubs from the “top five leagues”, namely the Italian (€47.7m), Spanish (€36.7m), German (€36.1m) and French clubs (€24.9m).[11] In fact, 17 out of the top 20 clubs by broadcast revenues in 2015 are English, the other three being Real Madrid, FC Barcelona and Juventus.[12] Nonetheless, even though UEFA is not responsible for the differences in media rights revenue, the FFP Regulations remain a clear obstacle for clubs from other leagues to get investment from alternative sources.  


What has UEFA done to counter this growing inequality?

The pressing question on many people’s mind is whether UEFA will, or even can, do something about the ever-growing financial inequality between football clubs. The FFP Regulations can be changed, as was demonstrated in 2015. An important innovation in this regard was the introduction of Annex XII on voluntary agreements with UEFA for the break-even requirement. Under this Annex, UEFA allows, inter alia, a club to apply for such an agreement if the club has been subject to a significant change in ownership and/or control within the 12 months preceding the application deadline.[13] When applying for a voluntary agreement the club will (among other obligations) need to:

- submit a long-term business plan, including future break-even information;
- demonstrate its ability to continue as a going concern until at least the end of the period covered by the voluntary agreement;
- and submit an irrevocable commitment by an equity participant (i.e. shareholder) to make contributions for an amount at least equal to the aggregate future break-even deficits for all the reporting periods covered by the voluntary agreement.[14]

The relaxation of the FFP Regulations to leave more room for investment has probably led to an increase of foreign acquisitions of European football clubs. As the graph below shows, only four clubs were bought by non-Europeans in the years 2012 and 2013, a period in which a stricter version of the FFP Regulations was in force, whole nine clubs were bought in 2016 alone, seven of which were bought by Chinese investors.



Source: UEFA’s eighth club licensing benchmarking report on European football, slide 56.


Nonetheless, upcoming media rights deals will ensure financial inequality for years to come, regardless of any particular FFP relaxation. It is estimated that Premier League clubs will receive an average of €141m per season for the 2016/17 – 2018/19, while e.g. Spanish clubs are predicted to make an average of ‘only’ €64m for the 2016/17 season.[15] Meanwhile, the highest earning Dutch club (Ajax) is expected to make a meagre €9.3m from the selling of its media rights for the 2016/17 season.  


Conclusion: Can UEFA equalize?

With the financial gap between clubs increasing instead of decreasing, should UEFA’s regulatory focus shift from good corporate governance (limited debt, small deficit) to redistribution and the fight against inequalities in football? The recently installed UEFA President Aleksander Čeverin held that “UEFA, together with its stakeholders, will need to continuously review and adapt its regulations”[16], but it is unclear what concrete adaptations he has in mind.

Possible options to tackle inequality would include: limiting media rights income; sharing media rights income at a European level; introducing salary caps; or even introducing a solidarity mechanism that would oblige clubs to redistribute some of their income to poorer clubs.[17] However, such proposals will always be strongly resisted by rich clubs, which are in a position to threaten to put in place a breakaway league at any time.[18] UEFA is hardly equipped to resist them. Unless UEFA’s regulatory monopoly is fully recognized and endorsed by the European Commission, it will not be able to face down a breakaway rebellion. Instead, it risks facing a FIBA-like bitter and costly secession. Hence, for UEFA the status quo remains the safest option, and facing criticisms from small clubs way less harmful economically and politically.

A final option, favoured by the many opponents of FFP, would be to abandon FFP all together. This way, there would be no more restrictions to (private) investors willing to pour their (often borrowed) money in (European) football clubs. However, it would also imply renouncing the key achievement of FFP, European football clubs are financially way healthier than in 2009 and their governance better scrutinized. Furthermore, taking into account the Premier League’s latest media rights deal, it is questionable whether abandoning FFP could in any way lead to a narrower gap between the rich clubs and the rest. 




[1] The definition of net debt according to UEFA includes net borrowings (i.e. bank overdrafts and loans, other loans and accounts payable to related parties less cash and cash equivalents) and the net player transfer balance (i.e. the net of accounts receivable and payable from player transfers) – see UEFA’s eighth club licensing benchmarking report on European football, slide 125

[2] Oskar van Maren, “The Real Madrid case: A State aid case (un)like any other?” (2015) Competition Law Review, Volume 11 Issue 1, pages 86-87.

[3] See for example, UEFA Club Licensing Benchmarking Report Financial Year ending 2008, slide 4.

[4] Article 2 (2) of both the 2012 and 2015 FFP Regulations.

[5] 58-63 of the FFP Regulations. Article 61 allows for an acceptable deviation of €5 million, i.e. the maximum aggregate break-even deficit possible for a club to be deemed in compliance with the break-even requirement.

[6] Markus Sass, “Long-term Competitive Balance under UEFA Financial Fair Play Regulations” (2012), Working Paper No. 5/2012.

[7] For an analysis of FFP under EU competition law, see for example Stefan Szymanski, “Financial Fair Play and the law Part III: Guest post by Professor Stephen Weatherill”, 14 May 2013, Soccernomics.

[8] UEFA Press release of 12 January 2017, “European club football’s financial turnaround”.

[9] Ibid.

[10] In fact, the discussion on financial balance between football clubs has been a constant theme for decades. Particularly the elaborated opinion of A.G. Lenz in the Bosman case is worth reading in that regard (paras. 218-234).

[11] UEFA’s eighth club licensing benchmarking report on European football, slide 74.

[12] Ibid, slide 75.

[13] Annex XII under A (2)iii) of the 2015 FFP Regulations. The application deadline is the 31 December preceding the licence season in which the voluntary agreement would come into force.

[14] Annex XII under B of the 2015 FFP Regulations.

[15] FC Barcelona and Real Madrid are expected to make €150m and €143m respectively, meaning that the other clubs would receive an average of €55m.

[16] UEFA Press release of 12 January 2017, “European club football’s financial turnaround”.

[17] Once again, see the opinion of A.G. Lenz in the Bosman case (paras. 218-234).

[18] Threatening to put in place a breakaway (European) league is a favoured method by some of the top clubs. For example, during last week’s row it had with La Liga following the postponement of the Celta – Real Madrid game, Real Madrid held that the Spanish league is not very well organised and that they are better off playing in a European Super League.

Comments (2) -

  • Stephan

    2/21/2017 3:16:36 PM |

    Interesting article.
    I've one remark on your claim that UEFA is not responsible for the differences in media rights revenue.
    I believe they do since UEFA prize money, specifically the market pool component,  is a protectionist measure to grow big leagues, disrupting uefa's own principals (even their mission) on fair competition.

    Why?
    Because uefa market pool is based on national TV deals, which is a false assumption causing to grow big leagues instead of big clubs. "Big club" already reflect domestic market pool only more direct to it's fanbase actually in stadiums instead of those watching tv around the world. Since CL needs to be the biggest platform, current reasoning is flawed: TV market should and could never be a driver for performance based incentives. Currently, this prize money is given directly to big countries.

    And yes, UEFA prize money is a big part is in club finances.

  • Stephan

    2/21/2017 3:24:02 PM |

    Also, in conclusion prize money is the easiest way to equalize between big leagues and smaller leagues. Leaving out this marketpool component, thus only reward prestation based prize money would potentially shift lot's of money from subtop clubs in big leagues to top clubs in smaller leagues.

Comments are closed