October 2010

NUMBER
June – October 2010
The EPFL in Action
Latest Legislation, Sports Regulations and
Jurisprudence
The Lisbon Treaty and European Union Sports Policy
– Richard Parrish / Borja Garcia / Sam Miettinen /
Robert Siekmann
The commercialization of TV rights in Italy. A “Round
Trip” of the TV Rights Ownership in 10 Years –
Ruggero Stincardini
The Premier League v QC Leisure Case: the
Intellectual Property Rights at Stake – Mathieu
Moreuil / Oliver Weingarten
Online Sports Betting: New Approach for Portugal Fernando Veiga Gomes
Contractual Stability - Philip Diallo
European Social Dialogue – Orlando Carvalho
The Swiss Federal Tribunal Annuls a CAS Award: the
“Dani” Saga – Juan de Diós Crespo
FIFA: “For the Game. For Europe?” – Gerardo Planás
Can an International Treaty Supersede the FIFA
Training Compensation Rules? – Luca Tettamanti
EPFL Sports Law Bulletin
7th Edition
INDEX
I – EPFL CEO EDITORIAL...........................................................................................................................................................4
II - EPFL IN ACTION
• EPFL Approves Resolution on Sports Betting Integrity...................................................................................................... 6
• EU Commission at EPFL GA in Paris – Commissioner Michel Barnier Promises Sports Betting Regulation
and Protection of IPRS........................................................................................................................................................ 8
• EPFL Board of Directors Re-elected for Another Three-year Mandate............................................................................. 9
• EPFL/FAO Match Day VS Hunger...................................................................................................................................... 10
• EPFL Best Practice Awards............................................................................................................................................... 13
III - JURISPRUDENCE
• Gambling ECJ Backs National Monopolies on ‘National Interest’ Claims - 9 July 2010.................................................. 14
• Arbitration CAS 2007/A/1370 Fédération Internationale de Football Association (FIFA) vs. Superior Tribunal
de Justiça Desportiva do Futebol (STJD) & Confederação Brasileira de Futebol (CBF) & Mr. Ricardo Lucas Dodô
and Arbitration CAS 2007/A/1376 World Anti-Doping Agency (WADA) v. Superior Tribunal de Justiça Desportiva
do Futebol (STJD) & Confederação Brasileira de Futebol (CBF) & Mr. Ricardo Lucas Dodô........................................... 15
• Arbitration CAS 2008/A/1485 FC Midtjylland A/S v. Fédération Internationale de Football Association (FIFA).............. 16
• Arbitration CAS 2008/A/1639 RCD Mallorca v. The Football Association (FA) & Newcastle United................................ 17
• Arbitration CAS 2008/A/1691 Wisla Kraków v. Fédération Internationale de Football Association (FIFA)
& Empoli FC S.p.A & K...................................................................................................................................................... 18
• Arbitration CAS 2008/A/1705 Neue Grasshopper Fussball AG Zurich v. Club Alianza de Lima...................................... 19
• Arbitration CAS 2009/A/1781 FK Siad Most v. Clube Esportivo Bento Gonçalves............................................................ 20
IV - SPORT REGULATION
• Portugal Prepares Legislation on Online Sports Betting................................................................................................. 21
• The Premier League Toughens up its Club Ownership and Directorship Regulation ..................................................... 22
• Finnish Clubs Now Able to Appeal Automatic Match Ban for League’s Games............................................................... 23
• Swiss Professional Football Launched a New Tool to Help Guarantee Contractual Stability in Labour Relations........ 24
V – OPINION ARTICLES
• The Lisbon Treaty and European Union Sports Policy – Richard Parrish | Borja Garcia | Sam Miettinen | Robert
Siekmann........................................................................................................................................................................... 26
• The commercialization of TV rights in Italy. A “round trip” of the TV Rights Ownership in 10 years – Ruggero
Stincardini.......................................................................................................................................................................... 31
• The Premier League v QC Leisure Case: the Intellectual Property Rights at Stake – Mathieu Moreuil | Oliver
Weingarten ........................................................................................................................................................................ 37
• Online Sports Betting: New Approach for Portugal.......................................................................................................... 43
• Contractual Stability - Philip Diallo................................................................................................................................... 46
• European Social Dialogue – Orlando Carvalho................................................................................................................. 49
• The Swiss Federal Tribunal Annuls a CAS Award: the “Dani” Saga – Juan de Diós Crespo............................................ 53
• FIFA: “For the Game. For Europe?” – Gerardo Planás..................................................................................................... 57
• Can an International Treaty Supersede the FIFA Training Compensation Rules? – Luca Tettamanti............................. 60
CEO EDITORIAL
“The funding of sport depends on the
protection of intellectual property
rights. My intention is to build a clever
and balanced position to guarantee
both the legitimate remuneration for
sports rights holders and consumers’
rights.”
Michel Barnier,
EU Commissioner in charge of Internal
Market and Services
Statement made during the EPFL
General Assembly, Paris, 23 July 2010
As suggested by the words of EU Commissioner
Michel Barnier at the EPFL General Assembly,
protection of intellectual property rights (IPRs) either
in the field of sports betting or media and marketing
have been, and will remain a priority of the European
legal and political agenda.
means that the need for an authentic and meaningful
market demand for media contents from viewers in a
particular region should remain one of the main
criteria for the decision to conclude a licensing
agreement. On the other hand, broadcasting companies should continue to find enough value in the
sports properties that are proposed by competitions’
rights holders to be able to offer to their customers
across Europe.
The assurances given by Mr Barnier to the EPFL that
the protection of the Leagues’ IPRs should be
recognized as a primordial feature of the European
model of sport and, as such, be incorporated in the
EU Sports Programme, are good news for sport.
“The Commission will launch a very
ambitious action plan against counterfitting and piracy in particular. I am in
charge of protection of copyright and
intellectual property.”
It is indeed very positive to hear from the EU
Commissioner in charge of Internal Market and
Services that the EU Executive institution does
recognise the vital role of commercial rights in
ensuring sport’s economic viability, as well as a fair
redistribution of revenues and financial solidarity
between the various components of the European
football family. However, it is vital to guarantee the
possibility of territorial exclusivity in the sale of
sports broadcasting rights, as well as the commercial
soundness of this practice. In practical terms this
Michel Barnier, Paris, 23 July 2010
Within this context, the developments of the “Premier
League versus QC Leisure” case, currently pending
at European Court of Justice, should be closely
monitored. Judges must be aware that this affair which carries the seeds of what could be labelled as
3
CEO EDITORIAL
a potential “Bosman” of sports broadcasting - could
indeed completely change the way sports media
contents are sold in the European Union. This is a
scenario which, if confirmed, would be devastating…
We are not asking for favours, but simply that the
rights of competition organisers are duly recognised
and legally protected.
We are confident that, both at the European and
national level, the courts, political authorities and
law-makers will be able to understand what is really
at stake here: nothing more and nothing less than the
integrity of sporting competitions and the economic
viability, not just of Professional Football, but the
whole sport. As a result, their ability to continue
pursuing their social, educational and cultural
function to the fullest.
At the national level, some progress has been made
over the last months in the field of sports betting
regulation. In particular, the enactment of the French
law on 1 May 2010, governing the opening of the
country’s online gaming market, and the launch, last
September, in Portugal, of an inter-ministerial task
force to work for the establishment of a domestic
online sports betting legislation should also be
welcome.
If this opportunity is not grasped, then damages for
sport may be of mass proportions. Sports would
suffer, but in a time where the European Union faces
its deepest social, economic and political crisis since
its creation, so would the European economy and
society.
Once again, the EPFL has battled at the forefront.
In the other Iberian country, Spain, the Government’s
willingness to take action and regulate its national
online sports betting market has met opposition from
the Spanish Professional Football League. And quite
rightly so, as, in broad terms, the draft law fails to
recognise the rights of the competition organisers
and their legitimate right to a fair financial return
from betting companies for the use of their rights for
betting purposes.
The EPFL will continue committing its full resources
and energies, supporting in every possible way the
Portuguese and Spanish Leagues, as well as all our
member Leagues.
Emanuel Macedo de Medeiros
CEO
“I will launch an important consultation
on online sports betting through a green
Paper and invite the EPFL to participate
in it.”
Michel Barnier, Paris, 23 July 2010
4
EPFL IN ACTION
EPFL Approves Resolution on Sports
Betting Integrity
prepare a codified set of recommendations (the
‘EPFL Code of Conduct on Sports Betting Integrity’)
on sports betting integrity in relation to the EPFL
Member Leagues.
Among its tasks, the EPFL Sports Betting Task Force
shall address the following issues, when formulating
the Code of Conduct:
• an obligation on all participants in the League’s
competitions to safeguard the integrity of sport
by refraining from any attempt to influence the
elements of such competitions in a manner
contrary to sporting ethics;
The threats posed by unlawful betting behavior never
stop. The problem is not new, but the need to tackle
it is greater than ever.
The EPFL and our Members regard match fixing and
unrestricted and unregulated sports betting as a
significant threat to the integrity of our Members’
competitions and the sport of football in a wider
sense, and are therefore committed to protect the
reputation of the Members’ respective football
competitions.
• a clear definition of the individuals and/or entities
to whom the League’s sports betting provisions
are intended to apply, in order to avoid any
ambiguity (e.g. all those connected with football
in some way such as, for example, players, club,
league and match officials, licensed agents and
Within this context, and in line with our Declaration
of Principles on the Future of Professional Football
in Europe, the EPFL is willing to continue working
closely with the football governing bodies, as well
as with other key stakeholders, on the future of
Professional Football in Europe and, in particular, to
face the challenges posed by unlawful use of sports
betting with stronger action and a tougher legislative
and regulatory response to safeguard effectively the
integrity of sports competitions and sport’s economic
viability.
As a result of that, the EPFL Member Leagues,
gathered at the meeting of their General Assembly
on 7 October 2010 in London, have approved a joint
resolution on Sports Betting Integrity. This resolution
establishes the creation of an EPFL Sports Betting
Task Force, which, following proper consultation with
the Leagues and co-operation with football governing
bodies and other appropriate stakeholders, shall
5
EPFL IN ACTION
EPFL Approves Resolution on Sports
Betting Integrity
those connected to the aforementioned persons);
return from the betting operator or bookmaker;
• the extent of the prohibition on betting on football
related events which may undermine public
confidence e.g. whether this prohibition should
relate to only those events in which the participant
whom places the bet has confidential information
and/or information that is not in the public domain
or an ability to affect the outcome of the event, or
should the prohibition extend to all football
matches and if so how this may be policed;
• provisions for notification procedures, should any
participant suspect or witness the occurrence of
irregular betting practices and/or suspect any
match fixing; and
• the prohibition on the disclosure of any ‘insider
information’ in relation to football with a view to
financial gain;
During its recent General Assembly, the EPFL called
once again the European Commission and the
European Parliament, as well as all competent
national political authorities, to adopt appropriate
legislation to protect the integrity of football and
safeguard its economic viability by recognising the
competitions organisers’ rights and foreseeing a fair
financial return from any betting companies to
compensate them for the use of their rights for
betting purposes.
• the implementation of information dissemination
and comprehensive educational programmes for
all participants in football with specific attention
being paid to young footballers.
• an obligation on all participants to co-operate
fully and, if appropriate, enter into information
sharing agreements at a national level with any
relevant statutory or governmental authorities or
industry regulators, in the context of football
betting;
• appropriate disciplinary procedures in the event
of a breach of the existing national betting
legislation and/or sports regulations;
• an obligation on all participants to co-operate
fully with any investigation and those participants
will be expected to disclose any information
which may be relevant to the case;
• an introduction of guidelines for Member Leagues
in relation to agreements with any betting
operator or bookmaker at a national level,
specifying that there is to be no use of the
League’s brand and intellectual property rights
without prior agreement and a fair financial
6
EPFL IN ACTION
EU Commission at EPFL GA in Paris
European Commission takes action to ensure sports
rights protection, online betting regulation and
funding of sport
The EU Commissioner also announced that, in
Autumn, “the Commission will launch a very ambitious
action plan against counterfeiting and piracy in
particular”. “I am in charge of protection of copyright
and intellectual property”, he stated in his address at
the EPFL General Assembly. “I know that broadcasting
rights are an essential source of funding for sport. I
understand your concerns to sell exclusive rights in
order to maximize your earnings. The funding of
sport depends on the protection of intellectual
property rights. My intention is to build a clever and
balanced position to guarantee both the legitimate
remuneration for sports rights holders and
consumers’ rights.”
Michael Barnier
EU Commissioner
Internal Market and Services
Sports rights protection, sports betting regulation
and funding of sport have been placed high at the top
of the EPFL General Assembly agenda, with important
announcements made by the EU Commissioner in
charge of Internal Market and Services, Mr. Michel
Barnier, at the EPFL General Assembly on 23 July
2010, in Paris.
Concluding his intervention, Mr Barnier praised the
relevant work performed by the European Leagues
and emphasized that the European Commission is
willing to work with them to achieve such goals.
Corresponding to the EPFL’s call for greater
protection for the Leagues’ intellectual property
rights and proper regulation for sports betting, in
order to ensure the game’s integrity and economic
viability and further development, Mr Barnier
declared: “I will launch an important consultation on
online sports betting though a Green Paper and invite
the EPFL to participate in it”. Acknowledging the
concerns voiced by the Leagues, Mr Barnier specified
that the European Commission “will look to France,
Spain, UK, Germany, Portugal and other countries to
build a common core bringing together the best
legislation and best practice” and invoked the recent
French legislation which consecrates the “sports
organisers’ rights” and a fair financial return for sport
from betting operators for the commercial use their
contents for betting purposes.
7
EPFL IN ACTION
EPFL Board of Directors Re-elected for
Another Three-year Mandate
During the General Assembly of the EPFL, held on 7
October 2010, in London, the European Leagues
elected the Association’s Board of Directors for the
cycle 2010-2013. The new EPFL Board of Directors is
now composed by: Sir David Richards (English
Premier League); Frédéric Thiriez (French League);
José Luis Astiazarán (Spanish League); Marco
Brunelli (Italian League); Holger Hieronymus
(German League); Frank Rutten (Dutch League);
Sergey Pryadkin (Russian League); Tomas Grimm
(Swiss League); and Claus Thomsen (Danish League).
They will be accompanied by Emanuel Macedo de
Medeiros, as the CEO of the EPFL.
8
EPFL IN ACTION
EPFL/FAO Match Day VS Hunger
II EPFL/FAO “European Match Day Against Hunger”
(22-24 October 2010)
with 100 in 2009) and in terms of territory with eastern
Europe becoming strongly involved for the first
time(Russia, Poland, and Ukraine).
The European Match Day against Hunger, now in its
second edition, is the result of an agreement of
cooperation signed between FAO and the Association
of the European Professional Football Leagues in
2008.
Campaign activities varied from League to League
and from stadium to stadium. Here are some
examples:
• Teams from Russia, Poland, Ukraine, Bulgaria,
Portugal, Scotland, Netherlands, Austria and
Spain lined up in campaign T-shirts while banners
promoting the project were unfurled in the
stadiums.
1. Professional Football Leagues, Clubs and
Stadiums
The second “European Match Day against Hunger”
brought together 16 European Football Leagues, 314
professional football clubs playing in 157 stadiums in
14 countries across Europe. From Lisbon to
Novosibirsk, from Oslo to Palermo, the European
Leagues dedicated their matches to the fight against
hunger giving support to the “1billionhungry” petition
project.
• Referees blew bright yellow whistles – the symbol
of the campaign – to kick off and officiate matches,
in Germany, Netherlands and Italy.
• In Russia, fans signed the “The 1billionhungry
project” petition as they entered and left stadiums.
• Official video spot, Tannoy announcements, LED
display advertising and/or banners in all stadiums.
This second edition saw a significant increase in
participation on the ground (157 matches compared
9
EPFL IN ACTION
EPFL/FAO Match Day VS Hunger
Television: Video material produced by FAO was
edited together with pictures sent in by Spanish,
German, Netherlands, Italian, Russian, Poland,
Ukrainian, Portuguese and Bulgarian Leagues and
then distributed to broadcasters on a worldwide
video feed set up for the event.
• Press Conference have been organised in Russia,
Spain and Bulgaria with Football Ambassador
Dmitriy Alenitchev, David de Gea and Presidents
José Luis Astiazarán and
Stefan Kapralov
respectively.
• FIFA Referee Howard Webb posed for a photo
shooting wearing T-shirt and yellow whistle.
Here some examples: • Wide visibility on all Leagues’ communication
platforms, official websites in particular.
• CNN produced a 5-minutepiece about Match Day
against Hunger in which they conducted an
interview with the ambassador of the German
League Hansi Müller who was wearing the
campaign T-shirt during the interview.
2. Match Day Media Promotion
Hereby a brief initial summary of the results of the
joint EPFL/FAO promotion of Match Day against
Hunger in terms of Media impact.
• German popular sports programme Sportschau
with over 5 million viewers dedicated 2 minutes
to Match Day against Hunger in which the
presenter wore the yellow whistle. National Leagues: The combination of national
efforts on the pitch by the EPFL Leagues together
with EPFL and FAO’s media campaign created a
powerful effect.
Each League promoted the
campaign locally with the relative sports programs,
which aired together with their football matches and
the EPFL/FAO video spot. They also published
campaign banners and articles on their websites.
• Portuguese State TV RTP dedicated 2 minutes on
air to Match Day against Hunger airing the EPFL/
FAO spot as well as the 1BH/WFD spot.
• CNN Chile, Telesur from Venezuela and Sport TV
in Brazil aired the Eurovision images.
Some leagues (Bulgaria, Russia and Spain) organized
press conferences with football players and Leagues’
executives, while others such as the German and
Spanish, also promoted the campaign with various
forms of advertising (TV, radio, print media, internet,
LED advertising in the stadiums) . Several leagues
ensured that TV commentators of the matches were
able to concentrate on the campaign during the
warm-up period (Sky Italy, Orange Sport and Canal in
Poland, NTV Plus in Russia, La Sexta, Gol TV and
Canal +in Spain or Sport TV1 in Portugal). Other
Leagues (French, Norway and Greece) supported the
campaign with relevant news and web-banners in
their official websites.
• Italian state TV RAI as well as private channel
SKY reported on Match Day during their sports
shows on Sunday.
• In Russia, NTV-Plus, the biggest Russian satellite
network with more than 2 million subscribers,
reported on Match Day against Hunger during its
sports programmes and aired pictures of players
wearing campaign T-shirts and fans signing the
petition during and after the matches.
10
EPFL IN ACTION
EPFL/FAO Match Day VS Hunger
• In Greece the most popular sports show,
FOOTBALL PLANET (on the NOVA channel),
reported on Match Day and showed the video on
Friday and Saturday during prime time.
leading sports newspapers Sovetsky Sport and
Sport-Express. Diario de Noticias and Expresso in
Portugal, sport newspaper “Triunfo” in Chile and
Newspress in France also gave space to the event.
• The world’s largest television news agency APTN, Reuters
TV
and
the
global
news
exchange, Eurovision, as well as most other
leading sports news agencies redistributed
pictures from the event on their global services.
Web and Social Media: Following the 1BH launch and
the World Food Day, the Match Day against Hunger
has been the third largest stimulant of petition activity
to date. Observing the 1BH website data we notice
that unique views in the Match Day period (October
22-25) account for 20 percent of October’s total. If we
compare against another October weekend with no
special event (October 1-4), we see that the number
of visits on Match Day weekend was 3 times higher.
Also of interest is the referral traffic: almost the 35
percent of referral traffic came from Match Day
against Hunger web activities. Also of interest is the
increased number of visits from individuals in
countries where Match Day against Hunger was
active, as shown in the table below.
• Hereby the list of television companies that
specifically requested access to the special FAO
world-wide video feed: Globosat from Brazil,
Instituto Cubano de Radio y Television from Cuba,
Arbeitsgemeinschaft der Oeffentlichen Rundfunkanstalten der Bundesrepublik Deutschland,
Deutsche Welle TV, Norddeutscher Rundfunk
from Germany, Télédiffusion d’Algerié from
Algeria, Antenna-3TV, Goal TV and RTVE from
Spain, Eurosport from France, Sports and News
TV from UK, Productora y Comercializadora de
Television and Televisa SA de CV from Mexico,
Unitel, Bolivision and Red Uno from Bolivia,
Multiproduction and TV Nova from Poland, Sport
tV Portugal SA and Televisão Independente TVI
from Portugal, IEC in Sport and TV-4 Nordisk
Television Ab from Sweden, Kapital Network
from Croatia. 1-4 OCTOBER
SPAIN
POLAND
ITALY
GERMANY
PORTUGAL
UNITED KINGDOM
UKRAIN
NETHERLAND
RUSSIA
BULGARY
Print Media: Match Day also raised interest in the
print media with over 600 articles on Match Day
against Hunger tracked (updated media dossier will
follow) in 13 different languages. Some examples are
the front page story in leading Italian newspaper La
Repubblica, in-depth articles on two leading German
newspapers Die Welt and Sueddeutsche Zeitung, El
Mundo and top sport journal Marca in Spain, or news
stories published by top Russian news agencies RIANovosti and ITAR-TASS and articles in Russian
540
31
2056
162
197
300
13
61
55
23
22-25 OCTOBER
8496
5355
4132
4203
1117
1085
710
704
380
257
The EPFL is currently working in collaboration with
the FAO in the production of a complete and detailed
Media Report Publication duly focused on the impact
on Media both at International and national. The final
results of the 1 Billion Hungry petition campaign as
well as the above mentioned Media Report will be
officially presented on the 29th of November, in Rome,
during the FAO General Council meeting, and sent to
all involved Leagues in due course.
11
EPFL IN ACTION
EPFL Best Practice Awards
The EPFL has officially launched an awards’ contest
to select and prize Best Practice activities and
projects performed by the European Leagues in
different categories and areas related to Professional
Football.
The programme of the Contest and all relevant
details shall be publicly announced shortly.The
contest will run during the 2010/2011 Football Season
and culminate with a Gala event, planned for Spring
2011, during which the European Leagues will
present their Best Practice prized projects to football
family, media and general public.
The initiative was welcome and highly praised by
the Leagues’ representatives. It is aimed at raising
awareness about the excellence of Leagues’
management
regarding
Youth
Development,
Marketing, Communications and Social Responsibility.
During the said meeting, the official logo of the EPFL
Best Practice Award was unveiled.
The Logo combines the main values and symbols of the EPFL and represents football’s essence and main
symbol: the ball (see IMAGE). Its shape and golden
color respect the EPFL’s identity, with 30 stylished
rings representing the current 30 EPFL Members
and A ssociate Members. The espherical form,
inspired in the EPFL’s own logo, stands for the
common sense of purpose and unity of the Leagues
around their Association.
12
JURISPRUDENCE
Gambling ECJ Backs National Monopolies
on ‘National Interest’ Claims - 9 July 2010
Europe’s top court has again backed national
gambling monopolies if they are deemed to be in the
national interest after a complaint against Swedish
laws. The European Court of Justice (ECJ) followed
last year’s Santa Casa ruling by saying that prohibitive
laws could be acceptable on cultural, moral or
religious grounds. However, the court also said that
current Swedish rules that differentiate between
promotion of overseas and domestic gambling
operations are illegal.
administrative penalties for promoting gambling
organised in Sweden without a licence, it said there
should be no discrimination. “Community law
precludes national legislation which penalises the
promotion of gambling organised in Sweden without
a licence differently from that of gambling organised
outside Sweden,” it said.
The European Gaming and Betting Association said:
“It is up to the legislator to embrace the reality of
online gaming and betting in Europe. Italy, France
and the UK have introduced online gaming legislation
and Denmark is set to follow suit in 2011.” European
Lotteries, an umbrella group for licensed national
lotteries in 40 European countries, said: “The court
has given full backing to the gambling model we
stand for, a model from which the whole of society
benefits.”
The latest case involved the editors and publishers of
Swedish newspapers Expressen and Aftonbladet,
which ran online gambling adverts for a number of
foreign bookmakers in 2004. While Swedish gaming
law currently allows operators licensed in other
Member States to offer internet gaming services in
Sweden, it prohibits the promotion of these services
through Swedish media. Swedish authorities had
prosecuted the two men, levying a criminal penalty of
SEK50,000 on each after ruling they had breached
the country’s lottery laws. The two appealed to a
Swedish court, which sought advice from the ECJ
back in 2008.
As for Swedish rules imposing criminal sanctions for
advertising gambling organised abroad but only
13
JURISPRUDENCE
Arbitration CAS 2007/A/1370
Fédération Internationale de Football Association (FIFA) v. Superior Tribunal de
Justiça Desportiva do Futebol (STJD) & Confederação Brasileira de Futebol (CBF) &
Mr. Ricardo Lucas Dodô
&
Arbitration CAS 2007/A/1376
World Anti Doping Agency (WADA) v. Superior Tribunal de Justiça Desportiva do
Futebol (STJD) & Confederação Brasileira de Futebol (CBF) & Mr Ricardo Lucas Dodô
In July 2007, Brazilian footballer Ricardo Lucas,
better known as Dodô, tested positive for
“Fenproporex”, a prohibited stimulant, following an
anti-doping control having taking place in June 2007
after a game with his former club, Botafogo.
The CAS eventually considered that it has jurisdiction
ratione materiae and ratione personae to entertain the
appeals of the FIFA and the WADA in respect of the
CBF and Mr. Ricardo Lucas Dodô, while it has no
jurisdiction ratione personae in respect of the STJD,
since the later has no autonomous legal personality.
The appeals of FIFA and WADA against the decision
dated 2 August 2007 of the STJD were upheld.
Dodô argued that the prohibited stimulant had
entered his body without his knowledge and through
the contaminated caffeine capsules that the Botafogo
medical staff had given him and other players of the
team, but the Disciplinary Commission deemed that
argument implausible and imposed a 120 day
suspension to the player. Dodô lodged an appeal to
the with the Superior Tribunal de Justiça Desportiva
do Futebol (STJD), which eventually decided to acquit
him, accepting his argument that he had been an
innocent victim of contamination and that he had not
been negligent.
FIFA and WADA then appealed against the decision of
the STJD with the CAS, but the Panel dismissed a
request for provisional measures filed by FIFA,
because it was not satisfied that FIFA had discharged
the burden on it of demonstrating the necessity of a
provisional suspension. Dodô also objected to the
request of WADA to hear as witness a representative
of the manufacturer of the contaminated, but he was
dismissed by the President of the Panel.
14
JURISPRUDENCE
Arbitration CAS 2008/A/1485 FC
Midtjylland A/S v. Fédération Internationale de Football Association (FIFA)
Danish Premier League club FC Midtjylland
established cooperation with FC Ebedei of Nigeria
that allowed Midtjylland to have purchase option on the
Nigerian club’s biggest talents, including players below
the age of 18, which would be enrolled young Nigerian
talents in the Club’s Football Academy.
the Regulations pointing out that no means allowing a
more lenient modus operandi appear to exist. (...) On
account of the above considerations and in strict
application of Art. 19 of the Regulations, the Committee
has to reject the arguments put forward by both the
DBU and FC Midtjylland. (…)”.
In June 2006, Midtjylland registered three minor
Nigerian players and applied for player permits for
those.
For the above mentioned reasons, the PSC decided to
issue Midtjyland and the DBU with a strong warning
for the infringement of Art. 19 RTSP.
The Danish Football Association (DBU) issued the
necessary licenses in favour of the players and
registered them as amateurs in accordance with the
Danish Football Association’s definition of amateur
players. The players were granted a residence permit
by the Danish Immigration Service, allowing a shortterm stay, as students, but not granting them the
right to work. They also received contributions
towards board and lodging and a little pocket money,
but the total amount of these contributions do not
exceed DKK 24,000 per student, on an annual basis,
respecting DBU’s regulations.
On 14 February 2008, Midtjylland appealed the
decision before the CAS.
It was clear for the panel the Art. 19 is entitled
“Protection of Minors” and Art. 19 para. 1 refers to
“Players” without any specification as to the status of
these players. As such it should be applied to minor
players in general, irrespective of whether they are
professional or amateur. Applying Art. 19 RSTP
restrictively to professional players only could result
in obviating protection of young amateur players
from the risk of abuse and ill treatment which was
clearly not within the anticipation of the scope of the
regulation.
However, the FIFPro contacted FIFA alleging that
Midtjylland was systematically transferring minor
Nigerian players, in violation of Art. 19 of FIFA’s
Regulations for the Status and Transfer of Players
(“the RSTP”). The Players’ Status Committee (PSC)
eventually issued a decision against Midtjylland and
the DBU. The decision reads – inter alia – as follows:
“ 7. (…) Art. 19 of the Regulations relating to the
protection of minors is applicable to both amateur and
professional players. (…) 13. (…) The protection of
minors, in fact, constitutes one of the principles included
in the agreement that was concluded between FIFA,
UEFA and the European Commission in March 2001 and
is one of the pillars of the Regulations. (…) The Committee
agreed that such aim can only be reached by a strict,
consistent and systematic implementation of Art. 19 of
The panel found that Danish club breached Art. 19
RSTP and that the nature and the level of sanction
imposed was appropriate. The appeal was
consequently dismissed.
15
JURISPRUDENCE
Arbitration CAS 2008/A/1639
RCD Mallorca v. The Football Association (FA) & Newcastle United
On 9 August 2005, Spanish professional football club
RCD Mallorca concluded an employment contract
with Argentinean footballer Jonas Gutierrez. The
agreement was due to expire on 30 June 2010, but in
May 2008 the player announced to Mallorca that he
wished to play for Newcastle United FC and signed a
contract with the English club in July, the same year.
Mallorca challenged this contract before an ordinary
Spanish court.
authorise the provisional registration of the player
with Newcastle. Mallorca appealed that decision
before the CAS. The appeal is directed against
Newcastle and the FA.
FIFA renounced to its right to intervene in the
arbitration proceedings, but sent information to
assist the CAS in deciding the matter - a “amicus
curiae brief” - which RCD Mallorca refused to be part
of the file. Since the present dispute did not affect
persons beyond those involved as parties – as it
should be the case to allow an amicus submission to
be taken into account without the consent of the
parties - the panel accepted Mallorca’s request and
decided not to include the information provided by
FIFA to the pieces of the proceedings, thus considering
FIFA a nonparty in the proceedings.
The Football Association (“the FA”) contacted the
Spanish Royal Football Federation (“RFEF”) to obtain
the International Transfer Certificate (ITC) for the
player with no success and consequently turned upon
Newcastle’s request to FIFA, requesting the
international clearance for Mr. Gutierrez.
As the RFEF also failed to answer FIFA’s different
requests, the Single Judge of the FIFA Players’ Status
Committee (“the Single Judge”) passed a decision
regarding the international clearance for the player,
in order to allow him to be transferred to Newcastle.
The ruling states as follows in relevant parts : “… on
the basis of art. 23 par. 3 and Annexe 3 of the Regulations
on the Status and Transfer of Players (hereinafter: the
Regulations), as a general rule, [the Single Judge] was
competent to deal with the present request for
authorisation to provisionally register the player in
question. Furthermore, the Single Judge stated that
pursuant to art. 22 of the Regulations, the Spanish club
was at liberty to refer the contractual employmentrelated dispute to a civil court. Yet, the ordinary Spanish
court is competent to deal with the contractual dispute
arisen between the parties involved as to the substance.
But, it is only the Single Judge of the Players’ Status
Committee who is competent to hear disputes pertaining
to the issuance of an ITC. In fact, such matters cannot
be referred to ordinary courts (cf. art. 64 par. 2 of the
FIFA Statutes)”. So, the Single Judge decided to
The panel held that neither Newcastle nor the FA had
standing to be sued in respect of the primary and
secondary reliefs sought by Mallorca and that,
therefore, the appeal had to be dismissed.
16
JURISPRUDENCE
Arbitration CAS 2008/A/1691
Wisla Kraków v. Fédération Internationale de Football Association (FIFA) & Empoli
FC S.p.A & K.
A professional agreement was signed on 27 July 2005
between Polish football club Wisla Kraków and Adam
Kokoszka, a professional football player from Poland.
The contract’s finish date was on 30 June 2010, yet in
May 2008 the player notified Wisla Kraków, the FIFA
and the Polish Football Association (“PZPN”) that he
was unilaterally terminating with immediate effect
his contractual relationship with the Polish club in
accordance with article 17 of the FIFA Regulations for
the Status and Transfer of Players (RSTP). The player
then signed a contract with Italian club Empoli FC in
July 2008 and was consequently called by Wisla
Kraków to appear at a disciplinary hearing in August,
the same year, for breach of contract.
The CAS Court office invited Wisla Kraków as well as
the Italian club and the player to express their
position on the request of the FIFA. Unlike Wisla
Kraków, which did not reply, Empoli FC and the player
agreed to become parties within the set deadline.
On 16 March 2009, the CAS Court Office informed the
parties that, “taking into account the Respondent’s
request for the jointer of Empoli FC SpA and K., the
agreement of the two third parties thereto and the
absence of any comments from the Appellant within the
time limit granted, pursuant to Article R41.4 of the Code
of Sports-related Arbitration (the “Code”), the parties
are advised that the Sole Arbitrator has decided that the
two third parties may be joined to these proceedings”.
In September 2008, the Italian Football Federation
(“FIGC”) formally required from the FIFA to be
authorized to provisionally register the player with
Empoli FC. This request was granted with immediate
effect by decision passed the following month by the
FIFA Single Judge of the Players’ Status Committee.
The latter reached this conclusion principally because
he found that Wisla Kraków “does not appear to be
genuinely interested in the services of the player
anymore, but rather in financial compensation” and
that “by means of a notice of termination dated 22 May
2008 addressed to the Polish club, the PZPN and FIFA,
the player had clearly expressed his wish to render his
services to another club than Wisla Kraków”.
The CAS considered that even though the requested
ITC had a provisional nature, the decision which
grants its issue was a final decision and consequently
the arbitral court had jurisdiction to decide on the
present dispute. Additionally, the CAS ruled the FIGC
had standing to file a petition with FIFA to provisionally
register the player and the provisional measures
ordered by the FIFA Single Judge of the Players’
Status Committee were deemed valid. However, the
arbitral tribunal did not award the requested
compensation to Empoli FC since the Italian club has
not proven nor made plausible the existence of the
alleged damage it suffered, since the case dealt with
the validity of the provisional measures as opposed
to the damages deriving from the contractual dispute
between the parties.
On 4 November 2008, Wisla Kraków filed a statement
of appeal and an appeal brief with the CAS challenging
the decision of the FIFA Single Judge of the Players’
Status Committee, naming only the FIFA as
Respondent. On 27 November 2008, the latter
requested Empoli FC and the player to participate to
the present arbitration proceedings.
17
JURISPRUDENCE
Arbitration CAS 2008/A/1705
Neue Grasshopper Fussball AG Zurich v. Club Alianza de Lima
An employment contract was signed between Swiss
football
club
Grasshopper
Club
Zurich
(“Grasshopper”) and D. a Peruvian player in January
2007, that is before the player’s 23rd birthday. D.
previous professional agreement with Lima, Perubased club, Club Alianza de Lima (“Alianza”) had
expired on 31 December 2006 and had not been
renewed.
Grasshopper filed its Statement of Appeal with the
CAS against the decision rendered by the DRC on 7
November 2008, without having filed with FIFA a
request for the grounds of the decision, and filed its
Appeal Brief with the CAS on 17 November 2008.
The CAS interpreted FIFA’s letter as a decision since
it clearly shows all formal and material characteristics
of a “decision” in the sense of Art. R47 of the Code
and accepted that Grasshopper filed the appeal in a
timely manner.
On 31 July 2008, the FIFA Dispute Resolution Chamber
(DRC) rendered a decision on the amount of training
compensation payable by Grasshopper to Allianza.
The decision outlined the findings of the DRC only,
but does not contain any reasons. It was notified to
the parties on 17 October 2008.
18
JURISPRUDENCE
Arbitration CAS 2009/A/1781
FK Siad Most v. Clube Esportivo Bento Gonçalves
Club Esportivo Bento Gonçalves (“Bento Gonçalves”)
is a Brazilian football club. It held the ITC of Brazilian
player C. from 23 March 2004 to 28 April 2006.
According to the player’s passport issued by the
Brazilian Football Confederation (CBF) on June 2007,
the C. was registered with the CBF as an amateur
player while he was playing with Bento Gonçalves. On
28 April 2006, C. moved from Bento Gonçalves to
another Brazilian football club, Brusque Futebol
Clube (“Brusque”), where he was still registered with
the CBF as an amateur.
The Czech club appealed the decision rendered by
the DRC to pay EUR 62,500 plus 5% p.a. interest to
before the CAS on 2 February 2009, without having
previously filed a request with FIFA asking for the
grounds of the decision, naming both the Bento
Gonçalves and FIFA as respondent parties and
requesting the CAS – inter alia – to annul the appealed
decision of the DRC and to dismiss the payment
request of Bento Gonçalves. As an answer to this
appeal, Bento Gonçalves requested the CAS to
terminate the arbitration procedure due to manifest
lack of competence of the CAS and to dismiss the
Appeal and confirm the appealable Decision of the
DRC.
The agreement between Brusque and C. granted the
player a monthly apprenticeship allowance worth
R$620 (Reais) for “his living costs and as an incentive
to the practice of football” as well as a wide range of
benefits including food and travel expenses,
healthcare and even life insurance in exchange for
him to participate in games, training sessions and all
other activities connected with the duties of a football
player.
The CAS interpreted FIFA’s letter as a decision since
it clearly shows all formal and material characteristics
of a “decision” in the sense of Art. R47 of the Code
and considered that this decision could be appealed
to CAS since Siad Most had exhausted the internal
legal remedies available in accordance with the
statutes and regulations of the FIFA. Finally, and
maybe most importantly, the arbitral tribunal
determined that - given the nature of the contract
between C. and Brusque and the numerous benefits
it included - the status of the player at the time he
was playing and registered with Brusque was that of
a professional player. In light of all of the above, the
CAS concluded that the decision of the DRC of 9
January 2009 should be set aside and the appeal
should be upheld.
On 22 August 2006, C. was transferred from Brusque
to the Czech club FK Siad Most (“Siad Most”) and for
the first time officially registered as a professional
football player within a football association.
On 29 November 2007, Bento Gonçalves lodged a
complaint with the FIFA Players’ Status Committee
regarding the non-payment of training compensation.
The DRC rendered a decision on 9 January 2009
accepting the claim of Bento Gonçalves and granting
it training compensation payable by Siad Most. The
decision sets out the findings of the DRC only, but
does not contain any reasons. It was notified to the
parties on 23 January 2009.
19
SPORT REGULATION
Portugal Prepares
Legislation on Online
Sports Betting
EPFL cooperates with Government
taking a range of actions to protect their competitions
from the influence of illegal betting behavior. These
measures carry a significant cost burden to which
the sports betting operators currently make no
financial contribution at all. Moreover sports betting
operators are commercially exploiting sporting
events, without recompensing in any way the
respective rights owners. “This is fundamentally
wrong and undermines sports financing models and
even its economic viability”, said Macedo de Medeiros.
The Portuguese Government launched a consultation
aiming at enacting a new legislative framework for
online sports betting in the country in September
2010. A special inter-ministerial commission was set
up and followed by an intensive consultation with key
stakeholders, which included the Portuguese
Football League and Association, the National
Association of Casinos and the state monopoly Santa
Casa da Misericórdia de Lisboa.
The EPFL therefore called the Portuguese
Government to establish an appropriate legislative
framework response to prevent and effectively fight
illegal sports betting, protect minors, ensure a
greater financial transparency and supervision,
preventing tax evasion, money laundry and other
threats and, finally, confirming that commercial
exploitation of sports by public or private operators
must be solely undertaken with the consent of the
Leagues and other competition organizers and a fair
financial return.
The process kicked-off on September 27 with a
meeting between several ministerial representatives
and the EPFL CEO, Dr. Emanuel Macedo de Medeiros.
During the two-hour meeting the EPFL Executive
shared the European League’s vision and main
proposals on the matter, by stressing the Association’s
serious concerns regarding the mounting challenges
posed by the unregulated expansion of the online
sports betting industry and the pressing need to
safeguard the integrity of football competitions and
the overall credibility of sport.
“In a time where Europe faces an unprecedented
financial and economic crisis, can any Government
afford the luxury of neglecting, not just those vital
objectives, but also the substantial tax revenues that a
properly regulated and transparent online sports betting
sector would generate? I honestly don’t think tax payers
would understand that.” added the EPFL CEO. As stated by the EPFL CEO on the occasion “the EPFL
and our Member Leagues are deeply concerned at the
threats to the integrity of sporting competitions through
increasing allegations of match-fixing and the growing
influence of illegal gambling syndicates.”
The EPFL and its affiliated Leagues, as well as UEFA,
FIFA and other competitions organizers, are under-
20
SPORT REGULATION
The Premier League Toughens up its Club
Ownership and Directorship Regulation
Jane Purdon
Legal Counsel, The Premier League
The Premier League recently amended its rules concerning
owners and directors of clubs as well as scrutiny of
takeovers. We have extended what used to be called the
“Fit and Proper Person” test and renamed it the “Owners’
and Directors’ Test”). We have included in it further
disqualifying events which will prevent an individual
becoming an Owner or Director of a Premier League Club. For example, a ban from another sporting body from being
involved in the administration of sport, or a disqualification
from a professional body (e.g. lawyers, accountants etc)
will bar an individual from becoming a Director of one of
our Clubs.
In addition, we have new Rules allowing takeovers of
Premier League Clubs to be scrutinised. Not only do any
in-coming owners undergo the above test, but in addition
the Premier League Board has the ability to examine the
financial impact of the takeover upon the Club and also
require to satisfy itself as to the source and sufficiency of
any funds which an in-coming owner proposes to invest or
otherwise make available to the Club.
The relevant Rules are set out in Section D (Owners’ and
Directors’ test) and at Rules C.91 (Club takeovers). I attach
copies of these Sections of Premier League Rules.
21
SPORT REGULATION
Finnish Clubs Now Able to
Appeal Automatic Match Ban
for League’s Games
During the Finnish Football Association Board of
Director in November 2010, a change was introduced
to the Vekkausliiga’s disciplinary match-ban process.
In the past, when a player received a direct red card
during a game, the sanction was an automatic twomatch suspension. The new rule will actually allow
the club whose player has been suspended to file an
appeal in order to overturn the ban.
to the ban did not commit an act that should result in
a direct red card. The only decisive criterion laid down
for the panel to review the outcome of the red card is
the existence of a clear and obvious mistake by the
referee. However, it is worth noting that the panel is
not competent to form any opinion on the referee’s
interpretation of the action. For instance, if there is
indeed a fault by the player and the referee choose to
issue him a red card, whereas it could be argued that
the offence only deserved a yellow card, it is not clear
and obvious and consequently the panel cannot
challenge the interpretation that was made by the
referee. Once the members of the panel have formed
a collective opinion based on the pieces of the file,
there are only two possible outcomes: they either
dismiss the appeal or uphold the club’s claim by
completely removing the suspension. There is no
possibility to just reduce the sentence.
This possibility of filing an appeal is exclusively
available for league’s games. The deadline for appeal
the suspension commences at the end of the game in
which the player was sent off and expires 24 hours
later.
The decision on the appeal is rendered by a panel of
three persons which are named by the General
Secretary of the Football Association of Finland. The
panel is made up of one representative from each of
the three following department of the Football
Association: Legal, Refereeing and Competition.
The decision to remove or upheld the suspension on
the evidence that video or other materials show in a
perfectly clear manner that the player who is subject
22
SPORT REGULATION
Swiss Professional Football
Launched a New Tool to
Help Guarantee Contractual
Stability in Labour Relations
The Swiss Football League has introduced a new
standard player-employment contract. This new tool
is the result of negotiations held between the Swiss
league and the domestic player union. It is based on
Swiss law, the Professional Football Player Contract
Minimum Requirements of FIFA and UEFA, the FIFA,
UEFA, Swiss Football Association and Swiss Football
League Regulations as well as the EPFL
Recommendations for Leagues and Clubs on
Contractual Stability.
needed, the contract also covers the issue of the
employee’s image rights. It underlines the fact
that the player should accept the use and
dissemination, by the club, of images of any kind
representing him alone or with the team, and
having been made by the club within the
framework of the player’s professional activity, in
any form and that he will receive no remuneration
for this over and above his agreed salary. However,
the text makes clear that as long as the club gives
its written consent, the player is entitled to use
his image independently without an obligation to
remunerate the club;
Some considerable innovations have been implemented:
• A preamble was introduced. This introductory
text states the objectives of the SFL, which are
the promotion of the sport of football in
Switzerland, the organization of non-amateur
football and its related competitions and the
safeguard of the interests of its members. The
preamble also says that in order to achieve those
goals, the SFL has for duty to regulate objectively
the competitions it runs by restricting or banning
clubs (on sporting or licence related grounds) or
players (especially on disciplinary or qualification
related grounds) from taking part. The parties
shall also acknowledge their dependence on the
SFL as the organizer of non-amateur football in
Switzerland;
• The contract also contains a set of declarations
regarding sporting and general behaviours that
the player has to agree with and sign. This newlyestablished code of conduct tackle practices and
topics such as – inter allia – doping as well as
drug consumption and dealing more generally,
responsible driving, alcohol abuse, sexual
harassment or assault, football betting and
domestic competition integrity, respect for all,
fair play, health and safety, security, etc.
• Under the terms of the deal done between the
two parties, the club also pledges to support the
player (if the latter is a minor) with his nonfootball related education to the best of its
abilities;
• Alongside the mention of the obligations for the
player to be at the employer’s disposal to perform
its professional footballing activities, including
taking part to matches and training sessions with
the club’s first and second teams as and when
• In the event of a player’s transfer occuring at the
end of the season while this very player has
signed an employment contract with another SFL
23
SPORT REGULATION
club for the following season, the player may
prepare the season with the new club provided
the present club gives its written consent. In that
context, the new standard work agreement also
explains further the consequences of the contract
termination without just cause. To that end, the
document refers to the Swiss legislation, Art. 17
of the FIFA Regulations on the Status and Transfer
of Players and to their interpretation by the Court
of Arbitration for Sport (CAS);
Strewn with innovations such as the preamble, the
reference to image rights, the code of conduct, the
emphasis on the risks that creates created by a
contract termination without just cause and the
institutionalisation of a new dispute settlement
system, the new standard employment contract of
the SFL represents a milestone in the fight against
legal insecurity in the domestic sports sector. Without
any doubt, this document should help Swiss
professional football’s main stakeholders guarantee
the contractual stability of labour relations.
• Another interesting feature – if not the most
important feature - of the new standard
employment document is its role in the
institutionalisation of a new dispute settlement
process. According to this mechanism, the parties
agree that only a court of arbitration is competent
to hear any dispute relating to the employment
contract (including enclosures), pursuant to the
following regulations:
For more information please contact:
Claudius Schäfer, Attorney at law
Head of Legal Services and Licensing
Member of the Management
SWISS FOOTBALL LEAGUE
P.O.B.
CH-3000 Bern 15
T 031 950 82 62
F 031 950 83 83
[email protected]
a. If there is a legal commission with a neutral
chairperson and equal numbers of club and
player representatives, which conforms to the
charters and regulations of the SFL and is
competent to rule on disputes relating to
employment contracts between clubs and
players, then this legal commission, which is
still to be established, will rule as the first
instance. This commission’s can be appealed
at the CAS in Lausanne, which will make the
final authoritative ruling, subject to mandatory
appeals according to state law;
www.football.ch
b. If there is no competent legal commission as
defined in paragraph a) above, arbitration
proceedings must first be held before the SFL
arbitration commission. In the event that an
amicable solution cannot be found within
twenty days from submission of the dispute to
the arbitration commission, either party may
submit the dispute to the CAS, which will
make the final authoritative ruling, subject to
mandatory appeals according to state law.
24
OPINION ARTICLES
The Lisbon Treaty and European Union
Sports Policy
Prof. Richard Parrish
(Edge Hill University,
United Kingdom)
Dr. Borja García García
(Loughborough University,
United Kingdom)
Samuli Miettinen
(Edge Hill University,
United Kingdom)
Prof. Robert Siekmann
(TMC Asser International Sports
Law Centre, Netherlands)
This article is a summary of the findings contained in
the European Parliament Study, ‘The Lisbon Treaty and
EU Sports Policy’.
BACKGROUND
However, the ability of the EU to allocate financial
resources to this activity and to develop a coherent
policy on sport has met with constitutional difficulties
given the absence of an express Treaty competence
for sport. The competence question has meant that
the EU has struggled to give sport high status and
comprehensive treatment. This is a concern given
that the EU is increasingly being asked by sports
stakeholders to provide a coherent response to
contemporary challenges in sport.
The principle of conferral stipulates that the European
Union (EU) must act within the limits of the powers
conferred upon it by the Treaty. Until the entry into
force of the Treaty on the Functioning of the European
Union (TFEU) in December 2009, sport was not
mentioned in the Treaties. This meant that the EU
was not granted a competence to operate a ‘direct’
sports policy. This gave rise to two broad concerns.
First, that EU sports policy to date has been guided
by the judgments of the European Court of Justice
(ECJ) and that single market laws, such as those
concerning freedom of movement and competition,
have not sufficiently recognised the specificity of
sport. A second concern is that EU sports policy has
lacked status and coherence. Sport has become
associated not only with free movement and
competition laws but also with a large number of
other EU policy areas including, public health,
education, training, youth, equal opportunities,
employment, environment, media and culture.
THE NEW ARTICLE 165 COMPETENCE
Article 165(1) TFEU provides that ‘The Union shall
contribute to the promotion of European sporting
issues, while taking account of the specific nature of
sport, its structures based on voluntary activity and
its social and educational function’. Article 165(2)
continues that ‘Union action shall be aimed at:
developing the European dimension in sport, by
promoting fairness and openness in sporting
25
OPINION ARTICLES
competitions and cooperation between bodies
responsible for sports, and by protecting the physical
and moral integrity of sportsmen and sportswomen,
especially the youngest sportsmen and sportswomen’.
Article 165(3) states that ‘The Union and the Member
States shall foster cooperation with third countries
and the competent international organisations in the
field of education and sport, in particular the Council
of Europe’. Finally, Article 165(4) permits the EU
institutions to adopt incentive measures and
recommendations, excluding any harmonisation of
the laws and regulations of the Member States’. This
new competence has raised expectations that the
Treaty Article can provide solutions to the two
concerns detailed in ‘background’ above.
either legislative or administrative action. At least in
the Bernard judgment, reference to the specific
nature of sport merely reinforces judicial possibilities
which were already open prior to the passage of the
Lisbon Treaty.
The absence of horizontality is, in the opinion of the
research team, not detrimental to the interests of
sports bodies who may have been hoping that Article
165 offers greater protection from the reach of EU
law than previously existed. This is because the
opportunities to give sports bodies a wide margin of
appreciation are substantial even if Article 165 TFEU
stops short of imposing a constitutional requirement
to do so. For example, in the Walrave judgment, the
ECJ made a distinction between ‘purely sporting
rules’ that had nothing to do with economic activity,
and those that had impacts on economic activity.2 The
judgment
also
suggested
that
nationality
discrimination, otherwise clearly prohibited by the
Treaties, was not relevant to ‘the composition of
sports teams, in particular national teams’.3 Although
the extent of the exemptions given to sports in both of
these interpretations have since been curtailed by
modern case law, three modern methods go beyond
the limited exemption in Walrave and enable sporting
practices to receive sensitive treatment even in the
absence of legislative special treatment.
1. APPLICATION OF EU FREE MOVEMENT AND
COMPETITION LAWS
First, Article 165 will have a limited impact on the
EU’s legal powers over sport, particularly in relation
to the application of internal market laws. This is
because Article 165 does not contain a horizontal
clause requiring sporting issues, and questions of
fairness and openness in sporting competitions, to
be taken into account in the exercise of other powers,
such as free movement and competition law. This is
to be contrasted with other Treaty competencies,
such as the provisions on environmental protection
and public health, which do contain horizontal
clauses. Therefore, from a strict constitutional
perspective Article 165 should not alter the existing
sports related jurisprudence of the ECJ and the
decision making practice of the Commission. This is
not to say that sport cannot, will not, or ought not be
considered when taking action in other fields. For
example, in the sporting case of Bernard, the Court
confirmed that the Article 165 TFEU reference to the
specific nature of sport strengthened arguments that
they should be taken into account when examining
the legality of restrictions to freedom of movement.1
However, Article 165 TFEU seems to stop short of
imposing a constitutional requirement to do so in
26
1. Case C-325/08, Olympic Lyonnais v Bernard & Newcastle United, paragraph 40.
2. Case 36/74 Walrave and Koch v Association Union Cycliste Internationale ECR [1974] 1405,
paragraph 4.
3. Walrave paragraph 8.
OPINION ARTICLES
First, rules that are ‘inherent’ to the proper conduct
of sport may in some circumstances not fall within
the Treaty. Secondly, rules that do fall within the
Treaty because they are restrictions of freedom of
movement may be justified, by reference to both
grounds found in the Treaty itself and to objective
justifications developed before the ECJ. Competition
law and free movement both also entail grounds of
justification found in the Treaties. The third, and more
unconventional method, is for the legal framework to
be applied to sport in a sensitive way in those cases
where it contains few sport-specific exceptions. A
review of the existing case law undertaken by the
research team confirms that the Court and the
Commission have already been highly receptive to
the notion that sport contains a ‘specific nature’.
Indeed, it is worth re-iterating that the ECJ’s
treatment of Article 165 TFEU in the Bernard case
supports the view that whilst the new sports
competence may have given further weight to sportsrelated arguments, it has not opened any new
previously undiscovered avenues of appeal. This is
because the judicial avenues for recognising the
specific nature of sport are already well developed by
the Court and the Commission.
force of the TFEU opens a range of possibilities to EU
institutions including, amongst others, funding
programmes on social inclusion, health promotion,
education and training, volunteering, anti-doping,
the protection of minors, combating violence and
corruption in sport, the promotion of good governance
in sport and supporting the development of a well
researched evidence base on current issues in sport.
In the consultation exercise undertaken to inform
this study, the respondents identified three priority
areas for EU action in the field of sport: (1) sport
health and education, (2) the recognition and
encouragement of volunteering in sport, and (3) the
development of sport activities as a tool for social
inclusion. The three priorities feature prominently in
almost all of the responses and they are also clearly
aligned with the priority areas identified by the
Commission in the White Paper on Sport,4 the 2009
and 2010 preparatory actions5 and the public
consultation exercise.6 Similar areas, albeit with
different headings, were discussed in the European
Sport Forum 2010 organised in Madrid and were
positively received by the representatives of the sport
organisations.7
2. THE STATUS AND COHERENCE OF EU SPORTS
POLICY
On the second area of concern - that EU sports policy
has thus far lacked status and coherence - Article
165 TFEU will make a much more definitive
contribution. Article 165 allows for the development
of a direct supportive and complementary policy in
the field of sport. Previously, in order to escape
accusations of acting beyond its powers, the EU
linked its sports-related funding programmes to
existing competencies in the Treaty, such as education
policy. The new sports competence contained in
Article 165 allows the EU to finance sport directly
without the need to justify this action with reference
to other Treaty competencies. Thus, the entry into
4. European Commission (2007), White Paper on Sport, COM(2007), 391 final, p. 3-7.
5. European Commission (2009), 2009 annual work programme on grants and contracts for
the preparatory action in the field of sport and for the special annual events, COM (2009)
1685, 16 March 2009.
6. European Commission (2010), Strategic choices for the implementation of a new EU
competence in the field of sport, EU-wide consultation report, available online at http://
ec.europa.eu/sport/library/doc/a/100726_online_consultation_report.pdf
7. See the Forum’s report published by the European Commission, available online at
http://ec.europa.eu/sport/library/doc/b1/sport_forum_madrid_report_11_05_10.pdf
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OPINION ARTICLES
In the White Paper on Sport the Commission
recognised that the commercialisation of sport has
attracted new stakeholders and this ‘is posing new
questions as regards governance, democracy and
representation of interest within the sport
movement’.8 The Commission suggested that it can
play a role in helping to develop a common set of
principles for good governance in sport such as
transparency, democracy, accountability and
representation of stakeholders. In the White Paper,
the Commission argued that governance issues in
sport should fall within a territory of autonomy and
that most challenges can be addressed through selfregulation which must however be ‘respectful of
good governance principles’.9 In this respect, the
reference in Article 165(2) to the promotion of
cooperation between bodies responsible for sports
adds impetus to the Commission’s agenda. In
particular, the Commission has long promoted
dialogue with the sports movement and has been at
the forefront of encouraging social dialogue. Article
165 also adds impetus to efforts to move dialogue
between the EU and the sports movement onto a
more structured footing. However, given the diversity
of the sports movement, structuring dialogue on a
meaningful and inclusive basis is a significant
challenge for the EU.
the European Sports Forum, bilaterally or
thematically, in no way undermines efforts by social
partners to conclude agreements within the context
of social dialogue committees in sport.
The other innovation brought by Article 165 concerns
the possibilities surrounding member state political
cooperation. Until the entry into force of Article 165
TFEU, member state political cooperation took place
informally outside the formal Council structure.
Individual Presidencies often decided to prioritise
sport but discussion was restricted to informal
meetings of EU Sport Ministers and EU Sport
directors and to ad hoc expert meetings on priority
themes. Article 165 grants the Member States a
competence to adopt a more formal and coherent
approach to sport and in may 2010, ministers
discussed EU sport policy for the first time in a formal
Council setting.
CONCLUSIONS AND RECOMMENDATIONS
Article 165 does not contain a horizontal clause.
There are no provisions in the Article that require
A way forward for the Commission in this respect is
to use Article 165(2) to develop thematic dialogue
with the sports movement over specific issues such
as the regulation of agents and the protection of
minors. The structure of this dialogue should not
assume that any single stakeholder has a monopoly
on representation and therefore bilateral dialogue
between the Commission and individual stakeholders
should be discouraged. Thematic structured dialogue
should not lead to ‘agreements’ such as the so-called
Bangermann agreement on player quotas in 1991. In
this instance, the ECJ reminded the Commission that
it does not possess the power to authorise practices
that are contrary to the Treaty.10 It is also important
that structured dialogue, either conducted through
28
8. White Paper, section 4.
9. Ibid section 4.
10.Case C-415/93 Union Royale Belge Sociétés de Football Association and Others v Bosman and
Others, [1995] ECR I-4921, paragraph 136.
OPINION ARTICLES
sporting issues to be taken into account when making
policies in other areas, but there are also no provisions
in 165 which prohibit the EU from doing so. Regardless
of the value attached to Article 165 by the Court and
the Commission, its existence is unlikely to alter their
existing approach to sport. A review of existing EU
sports law cases reveals that Article 165 TFEU will
add little further protection for contested sports
rules beyond that already provided by the Court and
the Commission. In this regard, the review reveals
that the Court and the Commission have already
been highly receptive to the notion that sport contains
a ‘specific nature’. Therefore, the often requested
production of guidelines on the application of free
movement and competition law to the sports sector
may not greatly assist the search for legal certainty.
The Commission’s White Paper on Sport more than
adequately explains the legal framework applicable
to sport. Furthermore, as the ECJ decided in MecaMedina, contextual analysis and the requirements of
proportionality control in EU law necessitate a caseby-case analysis of disputes involving sport. This
renders any informal guidelines subject to
challenge.11
Article 165 resolves any legal uncertainty concerning
the competence of the EU to directly fund sports
related programmes. It is now clear that the EU has
the competence to directly carry out actions to
support, coordinate or supplement the actions of the
member states in the field of sport and this
competence grants the EU a potentially wide field of
action. However, the choice of priority themes should
be directly linked to the themes contained in Article
165 and before supporting priority areas, the EU
should demonstrate the European dimension in sport
and establish the added value of EU action. A focus
on a narrow range of priority areas is to be favoured
over a broad approach so that the added value of EU
action can be demonstrated. In this connection, the
consultation exercise reveals that stakeholders
favour action in the areas of health enhancing
physical education, volunteering and social inclusion.
In addition to these areas, there is a need to focus on
evidence based policy making and in this connection
the EU should fund research and encourage
stakeholders to justify their positions with solid data
and research.
On the face of it, Article 165(4) also appears to be
unequivocal concerning the prohibition on
harmonisation of the laws and regulations of the
member states. This statement might encourage
claims that the laws and regulations of the member
states cannot be harmonised in so far as this would
affect sporting practices. However, an examination of
past prohibitions of harmonisation and their
treatment by the ECJ suggests that harmonising
measures can be taken despite this type of prohibition
so long as the harmonising measures are nominally
based on another Treaty competence. Despite
similarly worded prohibitions of harmonisation in the
fields of social policy, education, vocational training,
culture, and public health, the EU has in practice
achieved convergence in legislation through other
legal bases.
Rather than passively relying on the reference to the
‘specific nature of sport’ contained in Article 165 to
seek to repel the influence of EU law in sport, the
sports movement should take a lead in defining this
contested term. This definition should be built into
the relevant sports regulations following an open and
transparent method of operation facilitated by the
governing bodies but involving affected stakeholders.
The definition should be thoroughly reasoned and
backed with robust data. The EU has a strong role to
play in facilitating this dialogue, sharing best practice
and ensuring that sporting autonomy is conditioned
on the implementation of good governance in sport.
Efforts at encouraging social dialogue in sport should
be maintained and moves towards a structured
dialogue should not undermine these efforts.
Thematic dialogue with the sports movement should
be encouraged.
11.Case C-519/04 P, David Meca-Medina and Igor Majcen v Commission [2006] ECR I-6991.
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OPINION ARTICLES
The Commercialization of TV Rights in
Italy. A “Round Trip” of the TV Rights
Ownership in 10 Years
Ruggero Stincardini
Head of Legal Department of the
Italian Football League Serie A
1. Sport has historically a great SOCIAL VALUE in
the various fields of human life: from health to
the ethics, to the competitive spirit and to the
solidarity among men and populations.
Football has the characteristic of being the
product of the activity of a plurality of individuals
(clubs) that act in a competitive system among
themselves, but inevitably need one the other
(like a POMEGRANATE that in its unity contains
all its grains): and this is not only for the feasibility
of the competition, but also for increasing the
commercial value of the same competition.
Modern evolution has assigned to sport also an
important ECONOMIC VALUE that benefits not
only those who play it, but the entire community,
in terms of production of revenues and
employment opportunities.
3. It follows that, differently from the functioning of
any other market, none of the firms which acts in
the football system (clubs) is interested in
completely expelling the other firms, moreover
the more balanced the agonistic strength of each
club is, the more the competition increases its
value to everybody’s advantage.
This evolution has been caused by the explosion
of the commercial value (merchandising and
sponsors) of the product sport that itself is the
consequence of the development of worldwide
communications technologies that in the last 60
years has brought sport events from single
grounds into the houses of sports fans, increasing
in this way the number of persons enjoying the
spectacle from few thousands attending at the
grounds or venues, to million and even billions of
people who can be reached – if so wished
-worldwide by communications networks.
It does not mean that each club should not and
cannot aim to maximize its profit, rather it means
that the biggest clubs have also to focus on the
existence of the smallest clubs, that have to keep
their agonistic standard (and consequently the
financial resources indispensable to maintain it)
in order to avoid that this standard falls and
consequently the quality of the whole product.
2. Among sports, the one that had the strongest
appeal over the mass of sports fans is, without
doubt, football.
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OPINION ARTICLES
4. Sport and media EVOLUTION in Italy.
there were two broadcasters in the market, one
for each technology: RAI in the analogical free TV,
and TELE+ in the encrypted satellite TV.
5. Football starts in Italy in 1897 with the foundation
of Italian Football Federation (FIGC) and the
organization of the first national championship.
From 1993 to 1999 the League, always in collective
form and through private negotiations, sold the
analogical terrestrial free TV rights (to RAI)
separately from satellite rights (to Tele+): two
contract of three-years length i.e. 1993-96 and
1996-99. Since 1993 the contracts of licence were
agreed only by the Football League.
In 1944 starts the TV, and two years later (1946)
football clubs establish the Football League.
Between 1950 and 1960 RAI broadcasts the first
matches with commentary and produces the first
programmes entirely dedicated to football.
10.On 1999 the Law 15 came into force which stated
the SUBJECTIVE NATURE OF RIGHTS: therefore
single clubs became the exclusive owners of the
rights of their home matches.
6. Till 1990 the only distribution platform was the
analogical free TV and – till 1980 – the only
broadcaster was RAI (state television). In 1980
starts also the commercial television (Mediaset),
that till 2005 have not expressed interest in the
national football.
Notwithstanding the clubs’ subjective ownership
of TV rights from 1999, the Football League, that
was granted by every club with a delegation, kept
selling the relevant rights for the free TV. Instead
the clubs sold the encrypted rights, internet and
DVB-h (mobile phones) rights as well as
international rights.
In 1990 channels with encrypted technology (
PayTV and Pay Per View) start to operate.
From 2000 on more efficient and more mass
media technologies like Cable television, Digital
Cable television, Internet, and DBV-h i.e. mobile
phones start to develop.
11.During these years, following 1999, the selling of
the encrypted rights has maximized the revenues
compared with free TV rights but has also
increased the financial gap between the “Big”
and the “Small” clubs and, therefore, the sporting
one.
7. THE LICENCE OF AUDIOVISUAL RIGHTS in Italy
8. Till 1993, in a system with only one broadcasting
technology and with the monopoly of RAI,
audiovisual rights were sold as a whole product
(Championship and Italian Cup) collectively by
the Italian Football League (whose members
were both clubs of Serie A and Serie B) through
private negotiations. Till 1993 the contracts of
licence were agreed by the Football League
(substantially collective owner of the rights)
together with the Federation.
12.In order to reduce this gap and to keep the
competitive balance among the clubs, the Italian
Football League has carried out internal
SOLIDARITY MECHANISMS through which Big
clubs transferred an amount of their revenues to
smaller clubs.
The Italian Football League provided for the
distribution of the revenues fairly between all the
clubs.
9. Since 1993 the broadcasting technologies became
two (analogical free TV and encrypted TV) and
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OPINION ARTICLES
THE NEW LAW 2008
16.The DEFINITIONS. In the introduction the Law
states the definitions used in the text with a detail
that, besides being useful for its hermeneutical
analysis, defines substantial items of the new
discipline and of the reform that the same Law
wants to carry out in subjecta materia.
13.The law, issued in February 2008, states the new
legal framework in the matter of sporting
audiovisual rights outlining, after having defined
its OBJECTIVES, its PRINCIPLES and the
DEFINITIONS of the matter, the new background
of the SUBJECTIVE OWNERSHIP of the rights, of
their EXERCISE, of their COMMERCIALISATION,
and of the SHARING OF THE REVENUE that
result.
The first important definitions (and, therefore,
substantial differences) are those related to the
“Event”, defined as every single match, and the
“Competition” that is the whole of the Events that
make the tournament (Championship or Cup) and
– therefore – those of the “Event Organizer” that
is always the home club, and the “Competition
Organizer” that is the entity that organizes the
championship or the cup: currently the Italian
Football League Serie A as far as the Serie A
Championship, TIM Cup and Supercoppa TIM are
concerned and the Italian Football league Serie B
for the Second Division Championship. This
distinction is fundamental as upon this is founded
the essence of the reform that realizes the
CO-OWNERSHIP of the rights among the two
“Organizers”. Another fundamental distinction is
that between Primary Rights (i.e. those of first
broadcasting), Secondary Rights (i.e. recorded or
summaries or Highlights) and Archive Rights (i.e.
primary and secondary rights when have elapsed
8 days from the event). This distinction defines
the scope of the rights subject of the co-ownership.
14.The OBJECTIVES stated by the law are:
(a) to guarantee the transparency and the
efficiency of the marketing of the audiovisual
rights of sporting events at national level,
(b) to guarantee the competitive balance between
the entities that take part in the competitions
disciplining the distribution of the economical
and financial resources ensured by the centralized
marketing of these rights,
(c) to assign a share of the resources for general
mutuality and as solidarity for the system.
15.The PRINCIPLES from which the law draws
inspiration are:
(a) the social value of sport as instrument that
leads to an improvement in the life quality and
as a mean of education,
The last important distinction is that between
Main Images, and Related Images: the first are
those of the match, and the second those related
to all that happen outside the pitch..
(b) the specificity of sport as stated by the Council
of Europe in Nice on 2000, and now recognized in
article 165 of EU Treaty.
(c) the co-ownership of broadcasting rights
between the Organizer of the “Event” (that is the
single match) and the Organizer of the
“Competition” (that is the whole championship)
and the exclusive ownership of the ARCHIVE by
the club , i.e. archive images,
17.The PROPERTY OF THE AUDIOVISUAL RIGHTS is
granted in co-ownership to the Organizer of the
Event (Club) and the Organizer of the Competition
(League) as far as the Primary and Secondary
Rights are concerned, while the Archive Rights are
granted exclusively to the Event Organizer (Club).
(d) the protection of the competition on the
market,
The co-ownership has the meaning of ”equal full
right” of the two subjects on the same good: each
(e) the guarantee of the news access.
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OPINION ARTICLES
of the two subjects (League and single clubs) is
the owner of the 100% of the rights. This is a kind
of co-ownership of Germanic law concept
opposing to the Romanic law concept of
co-ownership per shares, i.e. in which every
subject is the owner of a percentage of the whole.
21.The COMMERCIALISATION OF the RIGHTS
It includes all those activities that lead to the
signature of the license contracts .
The Organizer of the Competition (the League) has
firstly to approve (with a qualified majority of 2/3
of the associated parties) the so called Guidelines
i.e. the rules that – in conformity with the Law –
will rule the bids and assignments procedures for
the audiovisual rights. The Guidelines have also to
be verified and approved by the Antitrust and the
Telecommunication Authorities. In order to
safeguard the competition on the market the Law
requires that the League complies with the
antritrust procedures.
As far as the Archive rights are concerned the
Law states that even if they are exclusive to home
club, they can also be exploited by the away club.
Finally, the law specifies that the home club has
the right to broadcast the images on so-called
Thematic Channels.
18.The EXERCISING OF THE RIGHTS, that is the
ways through which the activities of exploitation
of the audiovisual rights are carried out.
22.The competitive procedures have to assure the
maximum participation of the operating, or
potential, platforms of the relevant markets, and
have to provide for a suitable number of live
matches in order to allow to more operators to
have a suitable product compared with the
investment to be sustained, and are reserved only
to the Communication Operators with the
necessary authorisation by Law
Stated the co-ownership of rights between
League and the single Clubs, the exercise of the
audiovisual rights is assigned exclusively to the
League according to a collective mandate ex lege
from the clubs.
Consequently it is void any exercise of the rights
by the Organizer of the Event (Club) that violates
this principle.
19.The PRODUCTION of the event is assigned by Law
to the single CLUB. Notwithstanding, in order to
give uniformity to the whole product, it is the
LEAGUE that establishes the minimum qualitative
and publishing standards.
20.The NEWS ACCESS is granted by Law, but in a
way that its exercise does not prejudice the
commercial exploitation of the Event..
As a matter of fact, the Law grants the news
access to broadcasters only inside
news
programmes. In any case, the news access can
not be exercised for more than 4 times per day
and maximum 3 minutes per single match and
always when 3 hours from the end of the Event
have elapsed and not beyond 48 hours following
such an end.
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OPINION ARTICLES
23.The Law also provides for the possibility for the
League to sell the whole of the rights to only one
entity, defined as Independent Intermediary, to be
always chosen through a competitive procedure.
defined by the League: it can sell the whole
Championship or split into Packages of matches,
it can sell to single distribution platforms (or
modalities of distribution) or put more distribution
platforms in competition. In the latter case (more
platforms in competition) the League has to
proceed with the so called Packages i.e. bundle
single matches together in different homogeneous
groups in order to give each platform the
possibility to bid for a share of the product.
The Independent Intermediary is an individual to
which the League can transfer the totality (100%)
of the audiovisual rights and that takes entirely
the place of the League and, hence, it assumes its
same bonds and its same obligations.
The Independent Intermediary therefore proceeds
in all the activities: it decides on the standards of
production, it realizes the Guidelines, and it
agrees the license contracts but cannot absolutely
exploit the rights by itself.
25.The Operators to whom will be licensed the rights
will be able to exercise the rights only on the
platform for which they have received the
permissions by Law. In order to avoid that an
Operator would substitute the league or the
Independent Intermediary, is forbidden any form
of sub-licence or sub-selling of the rights.
24.The content of the invitation to tender is free
(except for two requirements by Law: (a) a
minimum amount for the bid and (b) the maximum
length of three years for the license) and it is
26.It is also important to underline that the law also
states that the multi-years contracts are bound
for the Assignee Operators for the entire duration
independently from clubs that will be present as
a consequence of the promotions and relegations
system.
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OPINION ARTICLES
27.Moreover the Law grants the League the faculty,
with the due protection of the consumer, to realize
and distribute the audiovisual products through
its own platform or television channel, or thematic
channel.
pool; and a third one on the basis of the sporting
result that can not be lower than the one based
on the market pool.
THE FIRST APPLICATION OF THE LAW
28.Always speaking of commercialisation, it has to
be underlined that the actions to protect the
Primary Rights are pertinent only to the League,
while those for the Secondary Rights are on the
home Club.
30.In application of the Law, the League has approved
the following criteria:
29.The RESOURCES SHARING
• 40% in equal shares,
The revenues of the license of the Primary and
Secondary rights sold collectively, are shared
among all the participants to the Competition, net
the parts distributed as solidarity according to the
Law.
• 30% according to the sport results (of which
5% according to the result of the last sporting
season, 15% according to the result of the 5
seasons previous to the last one, and 10% for
results of the previous sporting seasons till
1946), and
A first share to be deducted from the revenues,
minimum 4%, is the so called “General Solidarity”
to be destined to the youth development, to the
development of the amateur sector, to the security
of the sports infrastructures, and to support other
sports disciplines different from football. In order
to give execution to this system of solidarity the
law provides for the constitution of an ad hoc
Foundation that will manage the relevant funds.
• 30% according to the market pool (of which
25% with regard to the number of supporters
and 5% to the number of population of the
municipality in which the club has its
headquarter).
31.For the selling after 2010, and until 2016, the
Italian League has chosen the way of an Advisor
and has been identified the company INFRONT
ITALIA.
A second share to be deducted form the revenues,
minimum 6%, has to be destined to increase the
value of the lower professional divisions (Serie B
and LegaPRO).
32.The production of the signal has been granted to
the League through a mandate by 18 clubs while
2 clubs produce on their own. The League has a
contract for the production with its advisor
INFRONT ITALIA.
The criteria for the internal division are approved
by the League General Assembly with a qualified
majority of three quarters (3/4) of the associates
and taking into consideration some preconditions
fixed by Law: a minimum share of 40% (and in any
case always bigger than the other shares) to be
compulsory divided in equal parts among all the
clubs participating in the Competition; a second
share to be divided on the basis of the market
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OPINION ARTICLES
The Premier League V QC Leisure Case:
The Intellectual Property Rights at Stake
Mathieu Moreuil
Head of EU Public Policy
of the Premier League
Oliver Weingarten
Solicitor Commercial and IP
of the Premier League
The audio-visual market, like all markets, works to
match supply to effective demand, bringing benefits
to both producers and consumers. In the area of
Intellectual Property Rights, this is achieved non
exhaustively through:
the demands of consumers on a national or regional
basis. For the vast majority of consumers across the
EU the existing system is working efficiently and to
their benefit.
On 24 June 2008 Mr Justice Kitchin referred the case
of the Football Association Premier League (the
Premier League) & Others v QC Leisure and Others
to the Court of Justice of the European Union (CJEU).
• The right to acquire Intellectual Property Rights
for exclusive use – so a company buying the rights
to a film, book, TV show or sports event definitively
knows that they own the exclusive rights to
broadcast or publish the relevant content and
can, therefore, invest with confidence and develop
their marketing strategy and business plans
accordingly
This case was brought by the Premier League and its
official broadcast licensee in Greece (Nova) against
two companies (QC Leisure and AV Station) which
exported Greek decoder cards into the UK and sold
them to pubs to show Greek Broadcasts of live
Premier League football.
• The right to sell Intellectual Property Rights on a
territorial basis – the EU is culturally and
linguistically diverse and it makes sense to tailor
production to the prevailing preferences in, and
languages of, each territory. Over decades the
markets for audio-visual content have evolved so
that demand matches the consumers’ needs, and
consumers receive exactly what they want.
A number of organisations believe they could be
affected by the outcome of the case and attempted
unsuccessfully to intervene at the ECJ. Consequently
UEFA and Sky as co-claimants recently brought an
action against Euroview, a supplier of European
decoder cards which has also been referred to the
CJEU on a similar basis to the Premier League’s.
Together, exclusivity and territoriality combine to
enable rightsholders and content acquirers to invest
in high quality content specifically designed to meet
The case is not just about sport, but has some legal
intricacies, and concerns the legality of satellite
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OPINION ARTICLES
television decoder cards authorised for use in one
country of the EU but then exported for use in another,
and whether you can protect your rights on a
territorial basis. The claims brought by the Premier
League and Nova included a claim under section 298
of the Copyright Designs and Patents Act 1988, which
gives effect in English law to the Conditional Access
Directive (98/84/EC). One of the main issues for the
national Court to determine, was whether under
English law, the Conditional Access Directive (CAD)
had been transposed into domestic law to permit
protection of “unauthorised” cards or did it merely
relate to truly pirate cards.
(e.g. dealers who buy up cards authorised for
residential use in Greece and resell them to
residential or commercial users in another Member
State), and preventing businesses from using those
cards for profit (such as a pub owner/operator who
buys cards authorised only for overseas residential
use and then uses them in UK commercial premises
in order to show programming which will attract
more customers to drink in that pub).
If a dealer were free to buy and thereafter resell
unauthorised cards for residential and/or commercial
use throughout the EU, it would sound the death
knell for the exclusive territorial sale of media rights,
the foundation on which the European audio-visual
industry is built. If rightsholders are no longer able to
enforce territorial exclusivity, there will be a
substantial, consequential detrimental impact upon
content producers, broadcasters, rights holders and,
above all, consumers.
The significance of CAD
The CAD only prohibits activities which are carried
out for “commercial purposes”. Accordingly, the CAD
has no application to a private subscriber taking his
own card across territorial boundaries for his private
use. That may be a matter for the terms of his
subscription contract, but it is not a matter for the
CAD and is not a matter with which this case is
concerned or ever has been concerned. In simple
terms, the role of the CAD is to prevent any card from
being used for any commercial purpose beyond the
scope of the authorised use of that card. That
includes preventing those who wrongly trade in cards
from reselling those cards for an unauthorised use
Questions of Copyright
The referred questions relating to copyright are
complicated and are of even more fundamental
importance to the future of sport and to the future of
the European audio-visual industry.
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OPINION ARTICLES
First, it should be made clear that the principal right
in question in this case is the reproduction right (ie
the exclusive right of the copyright owner to reproduce
a work in which the copyright subsists). This right is
not intended to protect a live broadcast but is intended
to protect a wide variety of other copyright works
such as films. However where, in order for a live
broadcast to be seen, it goes through a process which
includes the act of copying (even if it is transient
copying) then on traditional principles the work has
become “fixed” meaning copyright must exist and
should be capable of protection and enforcement.
Similarly, traditional works included in the broadcast,
such as musical anthems and pre-recorded footage,
must be capable of traditional copyright protection.
In reality, the copyright questions in this case are not
only about protecting the live coverage of sporting
events but also about whether copyright can continue
to exist in the light of technological advancement and
whether the copy made in the decoder box has any
independent economic significance.
infringement of a substantial part of the recorded
work. The end result of accepting this argument
would be not only to deny the rights of those who
wish to protect the wrongful copying of a live
broadcast of a sporting event, but also the rights of
those who wish to prevent the streaming of, for
example, films or other traditionally protected
copyright works. In other words, it is putting a
fundamental hole in the ability of copyright to protect
rights owners in the light of new technological
advancements.
In one of the copyright questions in this case, the UK
court asks whether transient copies of a work created
within a decoder box are covered by the exceptions in
the Copyright Directive. In other words, are the
temporary acts of copying within the decoder box
permitted as a matter of copyright law because their
purpose is to enable a lawful use of a copyright
protected work and have no independent economic
significance? The answer to this question must be
No. The purpose of the copying in this case is not a
lawful use of the copyright work because the use in
question has not been authorised by either the rights
holder (namely the Premier League) or the
broadcaster (namely Nova). Moreover, such copying
makes it possible for the purchaser of the decoder
box (and associated foreign viewing card) to make
available live football matches for viewing within a
commercial establishment, thereby attracting more
customers who generate greater revenues, and
enables that establishment to earn a greater
economic return than it would earn by purchasing a
subscription from the UK licensee of the relevant
rights. It is therefore clear that the copying has an
independent economic significance because it
enables the person making the unlawful copies to
earn a greater economic return and would also
deprive the exclusive licensees of the relevant UK
rights of revenue.
The Premier League argues that the fact that decoder
boxes, like computers when buffering or streaming,
copy the broadcast as part of the delivery process is
something that is and should be protected by
copyright law and that in this case the copy made in
the decoder box has considerable economic
significance. Indeed, without this copying the live
broadcast cannot be relayed. The fragments present
at any one moment in time are compiled to reconstruct
the whole. To argue that the individual fragments are
themselves so small as to not be in breach of
copyright is a ludicrous position, ignoring as it does
the clear intention to recreate the original work.
Copyright does not, and should not, offer protection
based on the size of the relevant work.
However, the defendants and the European
Commission argue that whilst there is copying, the
copying is only of fragments of the relevant work at
any one time, and of such small instances for such a
small space of time that it could not give rise to an
If the court were to find against the Premier League
on the copyright questions in this case, the
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consequences for the European sporting organisations and the European audio-visual industry as a
whole would be disastrous. Any such adverse decision
would destroy the framework of copyright protection.
Content creators are economically dependent on the
successful exploitation and protection of their IP
rights and, if copyright protection were to be so
undermined, broadcasters would pay significantly
less for the right to use audio-visual content because
they would no longer be able to ensure exclusive
exploitation of the acquired rights. As a result the
income of content creators and that of all of the
people and industries associated with content
creators throughout the EU would fall dramatically
and investment in the production of new content
would similarly decline.
rights, and emphasises that the key element of
copyright protection is that it enables and protects
the sale and purchase of audio-visual rights on an
exclusive basis. These returns encourage investment,
reward creativity and excellence, and allow companies
to make long-term plans for how they wish to serve
the consumer.
Who will be affected by the outcome of the case?
Carriers of content – broadcasters, cable operators,
mobile and other broadband services which deliver
audio-visual content in Europe together employ
millions of people, sustain a wide range of companies
from SMEs through to global multi-billion Euro
enterprises, lead innovation in many technologies
and generate billions of Euros in tax revenues. Not
only will the CJEU decision affect broadcasters and
platform operators but it will also affect companies
which develop, manufacture and supply equipment
and services to industry and the consumer, and will
inhibit new entrants to the market.
This case is no longer about the narrow issue of
football broadcasts but call into question fundamental
aspects of Copyright Law and Intellectual Property
Rights and could have a profound impact on a wide
range of businesses. A number of organisations
within the creative industries believe they could be
affected by the outcome of the case as it goes to the
heart of the European Union’s audio-visual,
broadcasting and broadband industries and those,
like sport, the movie sector, that supply them.
Consumers - hundreds of millions of Europeans
engage with the output of the industries that will be
affected by the CJEU decision, enjoying sport, films,
TV programming and a wide range of other audiovisual products tailored to the needs of specific
groups of consumers in this rapidly growing part of
the EU economy. The current IP framework responds
to the cultural demands of Europe’s many and diverse
language and cultural groups, and this will be
jeopardised.
The originators and owners of audio-visual content
– film makers, TV production companies, sports
rights owners and sporting event organisers,
performers, artists, writers, technical staff and many
others involved in content production all benefit from
the existing stable Intellectual Property Rights
regime, a system that has been established over
decades. This regime, embodied in international
agreements such as Berne, Rome and TRIPS enables
content originators to meet demand from
broadcasters and consumers, seeks to ensure that
there are fair returns to the creators and owners of
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Member States of the EU and the European
Parliament – Any reform of the audiovisual rights
market deserve a proper discussion at national and
EU level with full respect of the institutional
proceedings, opinions from the European Parliament
and the Council and comprehensive stakeholders’
consultation. The case could circumvent the ongoing
debates at national and EU level and could prevent
Member States and the European Parliament from
playing their legitimate role.
An environment of uncertainty could lead to a period
of market chaos and consumer confusion. Generally
speaking, substantial changes in policy such as that
implied by a Negative Finding should follow a proper
process of policy consideration, market analysis,
economic impact analysis and public consultation. In
this case a Negative Finding would create immediate
and extreme turmoil without the normal benefits of
proper consideration of the consequences of change.
After an uncertain period transition the market
response to a Negative Finding (which by definition
would mean that exclusive rights could not be
enforced on a territorial basis) is likely to be to move
to the sale of rights on a pan-European basis. This
would discriminate against those potential licensees
who cannot easily operate on a multi-national basis
(whether for reasons of scale or because of national
focus). This discrimination will artificially depress
demand for content and further reduce returns on
investment for rights holders.
The Adverse Consequences of a Negative Finding
A Negative Finding would mean that any licensee
who has acquired rights to broadcast a programme
in one country in the EU could then broadcast the
same content to every other country in the EU. As a
result, product differentiation would become much
more difficult and broadcasters would find it harder
to attract viewers (and advertisers) to their services
and, in the case of pay TV services, to encourage the
take-up of subscriptions.
It follows, therefore, that a Negative Finding would
reduce the value of territorial rights because potential
licensees would no longer be able to ensure territorial
exclusivity in order to differentiate their product
offerings and would not be prepared to pay anything
near the same amount for content if the relevant
exclusivity cannot be guaranteed. The risk
environment would be significantly worsened with
fears of lower returns leading directly to a reduction
in investment and innovation of content and therefore
in the prices broadcasters and other platform
operators are willing to pay to content creators. In
the case of sport-based content there would be direct
consequences for investment in the sporting
spectacle (talent acquisition, talent development,
stadia and facilities improvements) and for
redistribution and investment in community and
grass root activities.
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Further, a compulsory pan-European rights market
would be more readily exploited by existing substantial
platform operators which can offer scale and reach
and which are not inhibited by a market or regulatory
requirement to focus on a single national market.
Small and local broadcasters would be unable to
compete effectively. It would also inhibit new entrants
to the broadcasting market, thus reducing consumer
choice, innovation and plurality.
commentary and specific language half time analysis/
studio discussion.
The recent sale of the Premier League rights in
Europe explicitly included the option of multi-territory
licensing, including on a pan-European basis. There
were no bids. This lack of interest reflects the absence
of consumer demand for any pan-European offerings
and not the existence of any obstacles to demand
being recognised.
Finally, a compulsory pan-European rights market
could threaten cultural diversity, one of the EU
founding principles. Indeed, substantial platform
operators, having bought pan-European rights for a
specific content, may possibly decide to exploit this
content in the Member States where they already
operate (potentially reducing the content exposure
and availability to consumers) but also to exploit it in
a non differentiated way (i.e. one single language,
one single format etc).
The Advocate General Juliane Kokott will present her
“conclusions” on the 13th of January 2011 and the
European Court of Justice will give its judgment
thereafter in 2011.
The existing scope for Pan-European Licensing
The existing IPR regime in the EU already allows for
pan-EU and/or multi-territory licensing where
demand exists. The absence of pan-European
licensed services is simply a consequence of the hard
fact that there is no effective demand from consumers
for them. This has been confirmed by a recent study
on the multi-territory licensing of audiovisual work
commissioned by the European Commission which
concludes that “increased international availability
of audiovisual works will not lead to a significant
increase in cross-border demand for such works”.
In the limited instances where multi-territory
demand does exist the existing regime adapts to
allow businesses to license and exploit rights across
more than one territory. However, this is more an
exception rather than the rule. It happens with the
Premier League rights in Scandinavia where a high
level of interest in English football is shared by a
number of countries. Even in this case the broadcaster
provides for each of its licensed territories a specific
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Online Sports Betting: New Approach for
Portugal?
Fernando Veiga Gomes
Lawyer at Abreu Advogados
Gambling is a controversial issue ever since. While
some defend its legalization as it is considered a
leisure activity and a considerable economic factor
able to generate large economic returns; others
argue towards its banning cause it may lead to match
fixing, fraud and corruption, it may be addictive and
touches social responsibility and ethical costs
principles.
European Countries like Portugal, Germany, Sweden
and Greece have very strict regulations and sport
betting is entirely controlled by the government. The
state monopolies are a reality in continental Europe,
defying competition law principles: in Germany, for
instance, some courts recognized that, in the absence
of a reliable betting policy, reasons of public order
cannot justify imposed restrictions on the provision
of betting services, but the state monopoly was
reinforced by a new legislation (Glucksspielstaatsvertrag) that entered into force in 2008; Spain
maintains the position that the “Loterías y Apuestas
del Estado” (LAE) is the exclusive supplier and
promoter of gambling on the Internet.
Governments – throughout continental Europe adopt different solutions and rules concerning betting
related to sports while trying to justify the existence
of State gambling monopolies!
Nowadays, in fact, gambling cannot be considered
merely as a leisure activity, as it generating large
revenues and it is well positioned to finance, in a
sustainable way, sports in general and football in
particular. The joint efforts of all sports agents to
greater regulatory control could be the way to deliver
these challenges.
Historically, the European Court of Justice (ECJ)
produced some contradictory decisions on this
matter. In Piergiorgio Gambelli and others, ruled
against the government control on sport betting,
stating that the restriction over gambling activities to
state-licensed companies is unlawful when based on
purely financial grounds, so restrictions have to be
justified, be proportionate and be consistent with the
public policy grounds. While in the Liga Portuguesa
decision (dated 8 September 2009), the ECJ, had to
conciliate two opposite currents: on one hand, the
rights of companies who provide the service of betting
on sports events, like BWin, and on the other, the
Back in 2007, the Independent European Sports Review
recommended the introduction, by the national
governments, of measures able to protect the
“intellectual property rights for sports” and to “provide
for appropriate corrective mechanisms to secure the
financing of sport in general and football in particular in
the event of a liberalised betting market.”
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rights of the EU Member States to protect their
citizens from social problems, gambling addition and
fraud and to protect their sport from failing to perform
its public service. In the Liga Portuguesa decision, the
ECJ stated that an EU country is allowed to ban
gambling websites if this is of public interest (in order
to prevent fraud and organised crime). The ECJ
considered that a monopoly system can be compatible
with the freedom to provide services when justified
with the fight against corruption and other crimes.
Thus, the ECJ decided in favour of Santa Casa,12
justifying the illegality of companies like BWin with
the combat to corruption and criminality. In this case,
the Advocate General Bot, considered that the
Portuguese legislation was not discriminatory and
the existing monopoly was proportionate (under
which only Santa Casa is allowed to make advertising
to gambling).
More recently, the ECJ considered that the current
rules on sport betting and lotteries in Germany are
incompatible with EU law as the government has
been blocking betting companies (such as Bwin) from
providing betting services while allowing public
monopolies to “carry out intensive advertising
campaigns” to maximize the profits. On the above
mentioned cases, the ECJ affirmed that national
gambling monopolies are legal if they meet the aims
of reducing fraud and gambling addiction.
More recently, the Commission requested the above
referred countries to amend their national legislation
so that the several existing restrictions are compatible
with article 49 of the European Community Treaty
(free movement of services).
After all the ECJ decisions on this subject, European
governments have to be more realistic given that
there is reality that cannot be ignored.
The ECJ agreed with the Portuguese Government
restrictive legislation justified by the protection of
consumers from fraud and organised crime. Despite
the non-interventionist hopes deposited on this case,
the restrictive measures imposed by the Portuguese
Government, were considered to respect the freedom
to provide services in the EU.
12.Santa Casa da Misericórdia de Lisboa (Santa Casa) is the social and public institution that holds
the monopoly of all types of betting in Portugal.
Instead of creating a “total forbidden system”, why
not regulate it and authorize it, reasonably?
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The existing reality (which is a consequence of the
several monopolies) is made of lack of rules, free
exploitation by online betting companies of names,
images, sports results, calendars, logos, piracy,
organised crime, match fixing, etc. In addition the
powerless intellectual property rights owners, like
clubs and leagues, see no revenues from the use of
their rights by third parties.
Portugal needs a new approach. A new set of rules
regarding the relationship between sports and the
betting industry, new legislation able to conciliate the
European and mandatory restrictions with the
exploitation of intellectual property and the prevention
of match fixing.
The Portuguese State monopoly and the existing
restrictions to advertising in sports are no longer
justified. The reality overtook the protection of
interests that need no longer to be protected. On the
other hand, Portuguese Football Clubs face the
reality of lack of new income sources, while waiting
for the Ministerial Commission to produce the results
of the necessary new approach.
IP protection for sports and regulation of betting
sector would undoubtedly ensure more revenues for
reinvestment in sport, while safeguarding the
integrity of competition and reducing the risks of
match-fixing because of the sophisticated technology
and software used by online betting companies.
With reference to the particular case of Portugal, the
European Commission (thanks to the efforts of the
EPFL) called the Portuguese government to establish
a preventive and effective legislative framework to
fight illegal sports betting, tax evasion and money
laundering, and to ensure greater financial
transparency and supervision. As a result, a special
Ministerial Commission was created with the final
purpose of enacting a new Portuguese legislative
framework for online sports betting.
Following the example of other European countries,
like France or Italy, Portugal may, in fact, take an
important step towards regulation of the betting
sector. The new rules enacted by the French – for
instance -, expressly recognize intellectual property
rights for the events organizers and the betting
licences have to be previously authorized by both
FIFA and UEFA.
When it comes to some figures, Bwin shows an
annual profit of € 700 million, € 35 millions of which
come from Portuguese citizens who are registered in
the mentioned website. The entities who provide
names, logos, images, calendars and results are not
receiving any compensation, because of a lack of
legislation. Even the Portuguese Government is not
receiving the revenues from such increasing business
that should (and it is not) be taxed in Portugal.
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Contractual Stability
Philippe Diallo
Director General of UCPF
As you know, the FIFA Dispute Resolution Chamber
(DRC) is the result of negotiations held between the
European Commission and FIFA in March 2001. It is
one of the key results of those negotiations because
it represents the only sporting body, which gathers
both representatives of clubs and players in order to
find the appropriate solutions when disputes arise.
Here are the four reasons why, according to me, the
DRC can be labeled a success:
1. The DRC has allowed to advance the case
autonomy of sport. Many countries and their civil
justice have regularly attempted to regulate
football on the behalf of its main stakeholders.
With the DRC, we have the opportunity to keep
our disputes “in-house”, so to speak, and to take
into account the specificity of sport. Here it needs
to be reminded that the statutes of FIFA ban
having recourse to civil courts. And you know, the
fight for the specificity of sport is not finished: the
Lisbon treaty has not yet ratified the article
concerning that subject. Furthermore, the
jurisprudence of the ECJ seems sometimes
dangerous for this very concept. Bear in mind the
Mecca-Medina case (ECJ – 18th july 2006).
It is an important point to underline because one
might think that the national civil law would be
enough to resolve our problems since the European
Court of Justice in Dona and Walrave cases ruled that
sport is an economic activity which must respect the
European Treaty. Now the experience has shown that
this is not enough to efficiently manage and regulate
sports.
There are two reasons for this: first of all, the world
of law and the world of sport work under different
timeframes, with different rhythms. Secondly, the
specificity of sport needs to be taken into account.
The DRC is necessary for both those reasons.
2. The DRC has also permitted to foster the dialogue
between clubs and players. After the very
tumultuous debate in 2000/2001, establishing a
feeling of trust between us was a big challenge. I
think the challenge has been met. All the
decisions of the DRC have been adopted with a
unanimous vote. That shows that clubs and
players can share the same approach. In that
context, I would like to add that the productive
dialogue between clubs and players within the
DRC is one of the elements, which explains why it
As mentioned above, the DRC was created in 2001
and it is now time to draw lessons from what we have
learned. This forum gives us the ideal opportunity to
do so.
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What to do against this? How to improve these
proceedings?
has been possible to launch an official ESD under
the auspices of the European commission during
the French presidency of the EU.
Before the creation of the DRC some of us imagined
it would be possible to create a DRC in each
confederation, with the FIFA-DRC dealing only with
the appeals as well as the transfers between two
confederations. But this idea has been dropped.
3. The DRC has again been a success because it has
benefited from the belief of the Parties involved,
ie. players and clubs. Each year, FIFA’s
administration receives around 1800 new cases.
This figure is a clear sign that the Parties believe
that it is possible to find solutions within the
football family and that the proceedings are fair.
So what should we do now?
The first answer is to strengthen FIFA’s administration.
Today, around 40 jurists work full time for the DRC. It
is a lot, but is it enough?
4. The last point in judging the success of the DRC is
the fact that only two per cent of the DRC decisions
have been reviewed by the CAS. It shows that
FIFA-DRC decisions have, so far, been the correct
ones.
The second answer is the “Single judge” of the DRC.
This judge can adjudicate for the disputes concerning
the calculation of the training compensation, the
calculation of the solidarity mechanism if the value of
those disputes is under 100 000 CHF. Today, it is
difficult to find cases where all these criteria are met
but FIFA wants to broaden the competences of the
single judge.
But, as a member of the DRC, I am aware that there
are still many problems. The main problem may be
the lengthy duration of the proceedings. Sometimes
clubs and players are disappointed because they are
obliged to wait a long time before receiving a decision.
In my opinion, they are right because for sport justice
to be efficient, it has to be fast.
To be honest, sometimes the clubs use this delay to
avoid paying other clubs.
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The third answer concerns new procedural regulations:
Circular FIFA n°1148 (rules governing the procedures
of the Player’s statutes committee and the DRC (June
23th 2008) gives us new tools like art 13 “proposals
from the FIFA administration – in disputes relating to
training compensation and the solidarity mechanism
without complex factual or legal issues, or in cases in
which the DRC already has clear, established
jurisprudence, the FIFA administration (i.e. the
Player’s Status and Governance Department) may
make written proposals, without prejudice, to the
parties regarding the amounts awed in the case in
question as well as the calculation of such amounts.
At the same time, the parties shall be informed that
they have 15 days from receipt of FIFA’s proposals to
request, in writing, a formal decision from the
relevant body, and that failure to do so will result int
the proposal being regarded as accepted by and
binding on all parties.)” or art 15 “decisions without
grounds – the Player’s Status Committee, the DRC,
the single judge and the DRC judge may decide not to
communicate the grounds of a decision and instead
communicate only the findings of the decision. At the
same time, the parties shall be informed that they
have ten days from receipt of the findings of decision
to request, in writing, the grounds of the decision,
and that failure to do so will result in the decision
becoming final and binding.”
Another idea would be to create a national DRC to
deal with disputes at national level. Several
associations have already created a DRC, but it
seems players prefer to go directly before the
FIFA-DRC.
Finally, the last answer is the new tool created by the
EPFL. The EPFL proposes a mediation system
between clubs. Although, this system is not binding,
it offers the possibility to avoid going before the DRC,
while resolving disputes in a confidential environment.
To conclude, I would say that the DRC has two goals.
The first one is to guarantee the solidarity within the
football family through the training compensation
and the solidarity mechanism; the second one is to
maintain the contract stability. I believe those two
objectives have been attained under current
conditions…until now.
I thank you for your attention.
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European Social Dialogue
João Orlando Vieira de Carvalho
Vowel of Liga Portugal General Assembly
I.Introduction and Background
Commission, the European Professional Football
Leagues Association (EPFL), representing the
European Leagues and employers (clubs and sporting
clubs), and the FIFPro (European Division),
representing trade unions and professional
footballers. European Clubs Association (ECA) was
also considered part of the representation process
on employers side, with the support of all parties
involved. The EPFL and FIFPro also agreed to engage
in this process the Union of European Football
Associations (UEFA) as a party associated with the
Committee.
The European Commission Decision of 20 May 1998
on “Adaptation and Promotion of Social Dialogue at
Community level” decreed the legal basis and the
provisions for the establishment, representation and
functioning of the Sectoral Committees of Social
Dialogue at European level. Since 1998 the sectoral
social dialogue at European level has developed
rapidly with the creation of several committees
related to several industries.
On December 10, of the year 2007, the Association of
European Professional Football Leagues (EPFL) and
the FIFPro - Europe Division, jointly submitted a
request to the European Commission for the creation
of a Social Dialogue Committee in the professional
football sector. In a communication dated March 13,
2008, the European Commission acknowledged the
existence of conditions for the creation of the
European Social Dialogue Committee in professional
football sector.
II.Rules of Procedure Relating to Social Dialogue
Committee in the European Professional Football
Sector.
At that same ceremony to launch the Professional
Football European Social Dialogue Sector, EPFL and
FIFPro adopted a set of rules of procedure of the
Committee. Thus, they defined the following
objectives of the Committee:
So the time had come for Professional Football to set
up a special committee of European Social Dialogue.
The public ceremony to launch the European social
dialogue in Professional Football sector took place in
Paris on July 1, 2008, through the establishment of
“European Social Dialogue Committee in Professional
Football sector”. In this ceremony, participated as
social partners recognized by the European
• Issuing opinions with the European Commission
on social policy, employment and development of
European policy on the professional football
sector;
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• Entering into agreements concerning matters
referenced above in accordance with the
provisions of Articles 138 and 139 of European
Union Treaty, and
Furthermore, the parties agreed to jointly discuss,
and when agreed, promote and develop the concept
of “Minimum Requirements of Professional Football
Player Contract” through the Member States of the
European Union, noting that this task is not intended
to reduce the minimum employment conditions
already existing in the different European Member
States and that its implementation would have to
take into account the principle of subsidiarity and the
legislative framework, which differs from country to
country.
• Promoting and developing the European social
dialogue at sectoral level.
At the same event was defined a “Work Programme
for the years 2008-2010” which included two agreed
goals: To discuss and disseminate the concept of
“Minimum Requirements on Professional Football
Player Contract” across the European Union member
states and promote studies, conferences, workshops
and round tables in the new Member States or
Candidate Members.
The main issues discussed and agreed between the
parties involved were:
A) The Contract and the Parties:
Thus, it was decided to set up two working groups:
the first concerning the “Implementation of the
Minimum Requirements of Professional Football
Player Contract” and the second on “The
Transformation of the Minimum Requirements into a
Collective Agreement at the European level.”
• Reduction in writing and signed by both parties,
place and date of signature, if minor, must contain
the signature of parent / guardian;
• Each party will receive a copy of the contract;
sending a copy to the Professional League and/or
to the National Federation for the register;
The activities carried out by these Working Groups
led to the drafting of a working document that has
come to illustrate the understanding of the parties on
such “Minimum Requirements of Professional
Football Player Contract.”
• Name, surname, date of birth, nationality and
address of the player, if minor, shall identify the
parent / guardian;
• Company name, complete address and
identification of representatives of the club;
• Date of commencement and termination of the
contract, rights of renewal and termination of
contract, early termination subject to just cause
of resolution;
III. Minimum Requirements of Professional Football
Player Contract.
On the basis of the achievement of that document
was the premise that “the Minimum Requirements of
Professional Football Player Contract”, is a set of
minimum requirements that must be included in any
contract celebrated between a professional football
player and a club or society sports, with respect for
national laws of their countries, collective agreements
and national regulations of FIFA, UEFA, national
federations and professional leagues.
• Identification of other actors in the contract
(parent / guardian, legal representative, agent
player, interpreter).
B) Club’s Obligations:
• Financial Obligations: salary, other financial
benefits, nonfinancial benefits, health and
disability insurance, pension funds / social
security, reimbursement;
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• Definition of the currency, amount, date and
method of payment;
D) Image Rights:
• Club and player must agree on how the image
rights are explored;
• Financial impact in case of significant change in
the income of the club;
• It is recommended to follow the principle that the
player can explore the individual rights and the
club can explore the image rights of players as
part of the football team.
• Ensuring of not football training of young players;
• Payment of Taxes, Right to paid holidays,
Protection of fundamental rights;
E) Anti-Doping Control:
• Health Policy, Occupational Safety and Regulation
of injury situations;
• Player and Club are subject to compliance with
all sports anti-doping regulations;
• Respect for Laws, Regulations and Decisions of
FIFA, UEFA, National Federation and Professional
League;
• General prohibition of doping - who manages or
encourage a player to dope is subject to
disciplinary measures of the national federation
or international bodies.
C) Player’s Obligations:
• Participate in games, training and social events,
complying with the instructions of superiors
(managers) and the club officers;
• The club recognizes the right to take further
action against players guilty of doping practices.
F) Dispute Resolutions:
• Maintain a healthy lifestyle and physical fitness;
• The contract will determinate the procedure to be
followed in case of dispute;
• Comply with the rules of the game, respect the
internal rules of the club, not to injure the
reputation of the Club, looking after the club
property and working tools;
• Refrain from the practice of other football
activities and other unauthorized activities not
covered by insurance of the club;
• Inform the club in case of illness or accident and
failing to perform medical treatments without
first prompting the club doctor and make sick;
subject to regular medical examinations and
treatments;
• Adherence to Statutes, Regulations and Decisions
of FIFA, UEFA, National Federation and
Professional League.
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• Any dispute shall be submitted to independent,
impartial and equal arbitration in accordance
with National Federation Statutes and Regulations
or to the Court of Arbitration for Sport;
most important political institution on European
Social Dialogue. Indeed, the imposition of a European
Social Dialogue specific sector on professional
football is the implicit recognition of the role that
professional football is destined to hold in all
professional activities undertaken in EU countries.
Symptom of such recognition is that professional
football is so far the only sport (not just from all the
professional nature) to be accorded the imposition of
a specific Committee, also besides the recently
established European Social Dialogue Committee
regarding sport in general.
• The decisions are final, however, disputes can be
resolved by a Dispute Resolution Chamber with
the possibility of appeal to the Court of Arbitration
for Sport.
G) Final Provisions:
• Definition of the applicable law and the Courts
jurisdiction;
Moreover, this institution also represents a decisive
step in the recognition and implementation of the
principle of specificity of sport in general terms
enshrined in Lisbon Treaty. For the recognition of the
principle of specificity of sport, it is need not only its
mere utterance, but also its definition and
implementation through a set of practical actions
that will develop and justify the imposition of such a
principle. The creation of a specific Committee of
European Social Dialogue in professional football
sector is undoubtedly a relevant action towards the
recognition, definition and implementation of the
principle of specificity of sport.
• In case of translation, indicating the version of
the contract as authentic;
• Stipulation of the confidential nature of the
contract;
• Rule that the invalidity of a clause does not affect
the rest of the contract;
• Definition of procedure relating
interpretation of contract terms;
to
the
• Number of copies and distribution list of the
contract;
Finally, the institution of the European Social Dialogue
Committee in professional football sector, is both an
opportunity and a key challenge that must be seized
by all actors involved in professional football,
otherwise a retreat may happen which may be
irreversible in affirming the specificity sport and the
recognition of professional football as a relevant
activity within the European Commission.
• Definition of annexes which form an integral part
of the contract
• Rule according to which any modification, addition
or deletion of the contract shall be valid only
provided that agreed in writing
Blessed, therefore, their representatives.
IV. Concluding Remarks.
The establishment of a European Social Dialogue
Committee in the field of professional football, was a
major milestone on the way to claim the sport in
general, and professional football in particular within
the European Commission and, therefore, within the
For more information, please contact:
Orlando Carvalho – Lawyer
T. +351 253271400
F. +351 253271402
E-mail: [email protected]
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OPINION ARTICLES
The Swiss Federal Tribunal annuls a CAS
award: The “Dani” Saga
Juan de Dios CRESPO PÉREZ
Ruiz Huerta & Crespo Sports Lawyers
Introduction:
When Dani signed his contract with Atlético, the legal
frame in force were the “FIFA Regulations for the
Status and Transfer of Players” of 1997 and at that
time there was no recognition of the Court of
Arbitration for Sport (TAS-CAS) by FIFA Statutes, and
on the contrary a plain prohibition to use arbitration
or to go to the ordinary Courts was stated.
The First Civil Law Court of the Swiss Federal Tribunal
delivered a decision last April 13, 2010 which has
been received both with surprise and with relief.
The Spanish Club Atlético de Madrid SAD had
appealed a previous award of the Court of Arbitration
for Sport in the case between the said club and Sport
Lisboa e Benfica-Futebol SAD “Benfica” from
Portugal regarding a claim brought by the latter after
a decision taken by FIFA Special Committee on the
14th of February 2008.
The first decisions: FIFA Special Committee and
Zurich Commercial Court:
Benfica decided, once the player left and before the
settlement in Court with the player, that came only in
January 2003, to claim for compensation for “training
and compensation” based on article 14.1 of the FIFA
Regulations 1997 to the new club (never to the player,
which was a bit strange) Atlético. Such a claim was
made before FIFA and on the 26th of April 2002, FIFA
condemned Atlético to the payment of 2,500,000 US
Dollars.
The case came from a long and winding road which
we can call the “Dani’s saga” in honour of the player
who was the one to ignite all the following decisions
which drove to the final Swiss TF one.
Daniel da Cruz Carvalho “Dani” was transferred from
AFC Ajax NV to Benfica for season 2000-2001 and
three more but on December 2000 the player
terminated the contract on the basis of a “just cause”,
which was not accepted by the Portuguese deciding
bodies but finally the player and the club reached an
agreement to settle the case.
With no other possibility but to use the ordinary
Courts, Atlético decided to challenge such a decision
before the Commercial Court of Zurich, on the
grounds that it was taken against the Swiss and EU
competition regulations. The Court annulled the
FIFA decision on the 21st of June 2004 conceding that
Meanwhile, the player signed a contract with Atlético
de Madrid SAD “Atlético” in January 2001 and from
that date, a non-ending story begun.
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it was taken against the Swiss and EU competition
law “among other things” and then vas “invalid”. FIFA
did not appealed the decision and as it was taken by
one of its bodies (“Special Committee”) it was the one
which appeared to the Court and thus Benfica was
not a party in that proceedings.
Again, and may be now with some reason as they
have settled with the Player, they did not claimed
against him for “breach of contract” which would
have been an evident first move when they brought
their first claim before FIFA.
Now the claim was not based on the 2,500,000 USD
but thanks to the arrival of the new “FIFA Regulations”
dated 2001 and that were agreed with the European
Commission after the well-known claim made on
December 1998 against the 1997 “FIFA Regulations”
before the said EU Commission, a new amount came
to the floor.
As FIFA was condemned to pay costs and Atlético
was willing to keep things going well with the football
governing body, both parties agreed, on the 25th of
August 2004 to settle the matter in which it was said
that FIFA will undertake the decision of the Zurich
Commercial Court in case that Benfica brings a new
claim on the same issue.
Those brand new Regulations accepted not only the
principle of “training compensation” but also the
possibility to breach a contract by a Player with an
indemnity to be paid for such a breach.
It has to be pointed out that those were times (not so
far but so different…) in which there were no CAS
appeals, no deadlines (or quite …) and a procedure
could be brought, depending on whom took the
decision, once again before FIFA. So, Atlético decided
to protect itself with this clause.
The second FIFA decision:
Benfica now sought for 3,165,928 Euro and it was not
so evident that the claim was based on the training
compensation issue or mixed with the breach of
contract one, which might permit to seek a higher
amount that the mere figures of the 2001 “training
compensation” system.
Strangely enough Benfica did not know, or at least
that was what they say, either that Atlético appealed
the first FIFA decision or the Zurich Commercial
Court one.
FIFA Special Committee decided not to grant any
amount of money to Benfica on the 14th of February
2008 (notified on the 23rd of December 2008, some 10
months later…).
It has always surprised me that Benfica, with a
decision given them 2,500,000 USD, never tried to
enforce it or, if they have done it, was never told by
FIFA that it was impossible because it was or under
an ordinary proceeding (from April 2002 to June 2004,
more than two years!) or that a Court has annulled it
(from June 2004 to October 2004).
But, this time the CAS had jurisdiction, according to
the newly approved FIFA Statutes of 2004 and an
appeal might be brought before the arbitration
tribunal.
It was then only in October, 21 2004 that Benfica
brought a case again against Atlético, on the very
same grounds of “training compensation” and, before
that, they have agreed and settled with the Player
(January 2003).
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The CAS decision:
An important issue was that TF sees no difference on
the fact that the second FIFA Special Committee
could be appealed before CAS (as the new FIFA
Statutes of 2004 allow) as it was identical that it was
an appeal against an association (FIFA), as the one
that was made before the Zurich Commercial Court.
Benfica appealed and a full proceeding before CAS
took place with a hearing in Lausanne where Mr
Villaverde, Manager of the club and I were defending
that the case cannot have another issue but to be
dismissed on the basis of having already been judged
(res iudicata). This was also said by the Special
Committee in its second decision (even though it
finally said that no amount was due picking another
legal way).
Thus, the proceedings before the CAS and previously
before the Commercial Court were identical as being
made against a decision of an association (The
Special Committee of FIFA) and on the same claim.
CAS, when awarding Benfica the 400,000 Euro
compensation
However, CAS decided to indemnify Benfica not with
the 3,165,928 Euro or “ a higher amount to be
determined by the CAS” or even to send back the
case to FIFA (as it was requested alternatively by the
Portuguese club) but with a 400,000 Euro
compensation which came from the basis of being a
fourth of the damage suffered by Benfica.
“ignored the judgment of the Commercial Court of the
Canton of Zurich of June, 21, 2004 which held as void the
Appellant’s obligation to pay compensation for the
formation and promotion as per the FIFA Special
Committee based on the 1997 FIFA Transfer Regulations”
The Tribunal Federal Judgement:
We were not pleased with the CAS award, and even
though I am a fervent admirer of CAS and arbitration,
we had the feeling that this could be a case to be
brought before the TF on the grounds of a violation of
Public Policy (“ordre public”).
Then, based on article 190.2.e) of the Federal Statute
on International Private Law of December 18, 1987
(”PILA”), Atlético appealed on the grounds of the
violation of public policy as CAS did not “heed the
material legal validity of the judgement of the
Commercial Court of the Canton of Zurich dated June
21, 2004, on the very same case” and thus did not
took into consideration that it was res iudicata.
One main argument was that we went to the
Commercial Court because FIFA Statutes did not
allow Atlético to go to any arbitration, including the
CAS and thus we had no chance but to apply to article
75 of the Swiss Civil Code and bring the appeal before
a State Court.
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It is important to remark that Benfica’s mention to
the TF that his right to be heard was denied as it was
not a party at the Commercial Court of Zurich
procedure was not accepted as
This is, however, the most (over)used of the possible
recourses set in PILA against CAS awards, but also
the one which never achieved until the present case.
This does not mean, in my humble opinion, that CAS
awards will now be annulled on that basis, as the
case is very special and FIFA (as well as the other
international and national federations that accepts
CAS as their final appeal body) has now a clear
internal proceedings which was not the case before
and when this saga took place.
“Art. 75 of the Civil Code determined the parties of the
action of impugnment” and then “it always gives
standing to be sued to the association and not to other
member interested in the decision”.
This is crucial as well as that such a decision has
always an erga omnes effect thus not only on the
mere parties but on all the members or third parties
interested. This is why, as I mentioned before, I was
surprised on the silence of Benfica during the
proceedings before the Zurich Commercial Court
and on his “awakening” five months after the
judgment.
Of course, from a defendant point of view, it is evident
that the TF decision, scrutinizing the CAS award,
gives us the feeling that our rights were protected
and this should be not a way to dismiss CAS but to
reinforce it.
I do know that the TF judgment has not been received
by all Swiss lawyers and professors so easily but this
is the job of the doctrine to study it more profoundly.
Right now, what remains is that for the first time (and
again thanks to football, the leading sport) the “ordre
public” is not a mere legal weapon to be used with no
chance to be accepted but that it has gone through
and has proved to exists, which is always well received
by defendants and specialists in CAS jurisdiction like
me…
Finally, the agreement between Atlético and FIFA
after such Commercial Court decision was not a
highway for Benfica to claim again and to FIFA to
decide again. When FIFA accepted that it
“would take into consideration the judgment of the
Commercial Court should Benfica make new claims
against Atlético in the same matter this reinforced its
validity for later proceedings, contrary to the view of
CAS”.
So, the TF decided that Atlético’s appeal shall succeed
and that CAS award is
“barred by res iudicata… and accordingly violates
procedural public order”.
Conclusion:
Juan de Dios Crespo Pérez is a Lawyer, of ‘Bufete Ruiz Huerta &
Even though this annulation by the TF of a CAS award
is not the first one, it has to be pointed out that all the
previous ones (three) were based on violation of the
right to be heard (two) and because of lack of
jurisdiction (one). So this is the very first time that the
TF annuls a CAS award on the public policy issue.
Crespo Sports Lawyer”, in Valencia-Spain, and a specialist in
national and international Sports Law and has been the lawyer
of Atlético de Madrid throughout the “Dani” saga from 2001 to
2010 when the Tribunal Federal of Switzerland decided to
annul the CAS award.
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OPINION ARTICLES
FIFA: “For The Game. For Europe?”
Gerardo Planás
Lawyer at Moreno Ruffinelli & Asociados
FIFA’s statement of mission boldly sets its guiding
principle in universal terms: “For the Game. For the
World”. Given the unparalleled growth of football in
the past decades, there can be few doubts that the
first part of the statement is true. But what about the
second? Here, it will be briefly submitted that after
an agreement made between FIFA and the European
Commission, FIFA’s mission statement may well turn
out to be “For the Game. For Europe”.
However, the article then goes on and establishes
three exceptions to this rule:
That the player’s parents move to the country in
which the new club is located for reasons not linked
to football;
That the transfer takes place within the territory of
the European Union (EU) or European Economic Area
(EEA) and the player is aged between 16 and 18; in
this case, the new club has to fulfill certain obligations,
such as provision of adequate football education,
school education, etc.13; and,
Why?
To answer this question, we have to focus our
attention on the regulations of FIFA for the transfer
of minors. There, it is submitted, we will find a rule
that only favors European associations in disregard
of associations from other regions of the world, thus
limiting de facto FIFA’s universal pretensions.
That the player must live no further than 50km from
a national border and the club with which the player
wishes to be registered in the neighboring association
is also within 50km of that border. The maximum
distance between the player’s address and the club’s
headquarters must be 100km. In such cases, the
player must continue to live at home and the two
associations concerned must give their explicit
consent.
In this sense, article 19 of FIFA Regulations on the
Status and Transfer of Players (RSTP) states that
“International transfers of players are only permitted if
the player is over the age of 18”.
This is the general rule, and as such is unobjectionable.
It establishes no undue discriminations or unequal
provisions.
13.The full text provides: “i. It shall provide the player with an adequate football education and/ or
training in line with the highest national standards. ii. It shall guarantee the player an
academic and/or school and/or vocational education and/or training, in addition to his football
education and/or training, which will allow the player to pursue a career other than football
should he cease playing professional football. iii. It shall make all necessary arrangements to
ensure that the player is looked after in the best possible way (optimum living standards with
a host family or in club accommodation, appointment of a mentor at the club, etc.). iv. It shall,
on registration of such a player, provide the relevant association with proof that it is complying
with the aforementioned obligations”.
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OPINION ARTICLES
There is much to commend in this article and its
provisions; in particular, it crystallizes FIFA’s efforts
to protect minors. As such, it deserves applause.
movement of workers may be found in other regional
agreements throughout the world, and thus, Europe’s
exceptional standing in FIFA seems unwarranted.
And yet… the article, especially by establishing the
second exception (b), sets FIFA on a dangerous path
to discrimination of all associations in favor, in this
case, of the European Union.
The real problem with this article should by now be
clear: it does not consider what American legal
philosopher Ronald Dworkin has called the “sovereign
virtue” of law: the cherished ideal of “equality”. As
the most superficial analysis of justice readily
demonstrates, the basis of justice is equality: to each
his own, ius suum.
It is clear that FIFA is not UEFA. Its goal, to recall, is
“the world”, not Europe. The question then is
inevitable: why does FIFA, the “world’s” Football
Governing Body, allow transfers of players aged
between 16 and 18 only within the European Union or
the European Economic Area? Why not allow this
same exception for other economic blocks, such as
Mercosur (South American countries influential in
football, e.g. Brazil, Argentina, Uruguay), Nafta
(North American countries are now active in the
football player markets), Asean, Apec, AU, and so
forth?
Let’s see if this provision of FIFA damages the
sovereign virtue of law. A hypothetical example will
suffice.
The article, as drafted, allows for a player of 16 years
to be transferred from a Portuguese team to a Finish
team if the Finish team fulfills all the stated
requirements. However, under the same provision, a
player of the same age cannot be transferred from a
Uruguayan club to and Argentinean club, even if this
club provides the same training, education, facilities,
etc, as the Finish team. The geographical and
cultural facts are the following: Montevideo is
separated by less than 200 kilometers from Buenos
Aires. Both share the same language, culture,
religion, weather, etc. We could say they are “twin
brothers”. Nothing could be farther from the truth in
the other case. Lisbon and Helsinki are separated by
more than 3,200 kilometers. The language, culture
and religion are extremely different, the average
temperature of Lisbon is 18 degrees; in Helsinki, it is
4 degrees.
Of course, one may say that this is due to the
agreement made back in 2001 between FIFA and the
European Commission. In this sense, it is not to be
doubted that the agreement between FIFA and the
European Commission in 2001 forms the basis of
these exceptions made by Article 19 of the RSTP. The
agreement established that international transfers
of players aged under 18 would be allowed to be
transferred but subject to certain objective conditions.
It is obvious that no ruling can be contrary to an
agreement made by a superior hierarchy organism;
namely, the European Commission. Article 39 of the
EC Treaty deals with the freedom of movement of
workers, and prohibits any kind of discrimination
based on nationality between workers of the Member
States.
Despite these are issues that will certainly affect the
minor, this transfer is allowed. However, even in the
case the Finish club, if it fulfills the same requirements
fulfilled for the Portuguese player, this Uruguayan
player could not be transferred to the Finish team.
This discrimination cannot be made by an Institution
in charge to rule without discrimination to a specific
region.
As such, the rule’s rationale seems unimpeachable.
However: couldn’t we say the same of other economic
and regional agreements – e.g. Mercosur, to name
but one example? The same principle of freedom of
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These examples show that the provision of article 19
does not pay full respect to the sovereign virtue of
equality; quite the contrary, it establishes a
discrimination that is not in principle reasonable and
is thus unjustified. Differences made by legal rules are
valid insofar there exists a warranted reason that
justifies this break in the equality. In this case, in
principle at least, this justified reason appears to be
missing and, thus, the rule should be changed.
block or continent, such as the European Union. For
example, art. H.3.4 of FIBA is almost identical to art.
19 of FIFA’s RSTP, but with one minor –albeit crucial—
difference: it does not limit itself to transfers within
“the European Union”. Article 4 of IIHF’s regulations
is pretty much to the same effect.
The conclusion is inevitable: there seems to be no
respect, in this case at least, for the sovereign virtue
of equality in FIFA’s regulations.
It may be suggested that the reason behind this
article 19 –its ratio juris—is to be found in the fact
that the European Commission and FIFA signed an
agreement in the year 2001. However, this is no valid
reason, since it could easily be overcome by an
agreement with other economic blocks, such as
Mercosur or Nafta.
Thus, what is suggested here is that FIFA change this
provision of article 19 in the future. This is not only
necessary, but what is more important, fair and
equitable. And it also accords with the spirit of FIFA’s
statement that it is “For the game. For the world”, and
not only Europe. Real equality demands nothing less.
Another reason for justifying this inequality could be
found in the fact that European leagues are the most
active and intense in the acquisition and transfer of
young players and thus they are most likely to be
subject to this rule. In this sense, what is normal is
that South American and African young talents to
migrate to European clubs and not the other way
around; and thus, what is “feared” is that these
youngsters will dissuade European clubs to invest in
academies.
However, this reason is also found wanting. Indeed:
this issue is dealt by Articles 20 and 21 of RSTP, which
establishes that clubs have to pay Training
Compensation and Solidarity Contribution.
Once again, there seems to be no valid, justified
reason for establishing a different treatment.
If this is even superficially compared with regulations
from other sports associations –the cases of
basketball (FIBA) and hockey (IIHF)—the difference
could not be starker. Both federations foresee the
possibility of exceptions for transfer of minors, as
does FIFA’s RSTP, but they do not limit these
exceptions to the membership of a certain economic
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Can an International Treaty supersede the
FIFA Training Compensation Rules?
Luca Tettamanti
Attorney-at-law at LL.M. International
Sports Law
31 December 2007, notably the seasons of his 20th,
21th and 22th birthdays14.
(CAS 2010/A/2075 Marítimo da Madeira SAD v/
Coritiba Football-Club)
It has not been demonstrated that Coritiba offered a
renew the professional contract of the Player after 31
December 2007.
In a recent award, the Court of Arbitration for Sport
(hereinafter, “CAS”) has denied the possibility to
supersede or to amend the system implemented by
FIFA on training compensation using the provisions
of an international treaty signed between the nations
where the two clubs involved have their seat.
Thus, at the end of his contract with Coritiba, the
Player went to Europe as a free-agent15, signed with
the Portuguese club and was then registered at the
Portuguese Football Federation on 30 January 2008.
In the 2007/2008 sporting season, Maritimo was
allocated in Category 2 according to FIFA Regulations
on the Status and Transfer of Players (hereinafter,
“RSTP”) concerning the calculation of the amount
due as training compensation16. As Maritimo did not
pay the training compensation to Coritiba, on 25 June
2008 the Brazilian side club lodged a claim with FIFA
requesting for the payment of EUR 110.000.
For the purposes of the present brief analysis, we will
take into account the award by the CAS and the
summary of the arguments raised by the parties, as
summarized by the CAS.
AS TO THE FACTS
The disputes arose between the Brazilian side club
Coritiba Football-Club (hereinafter, “Coritiba”) and
the Portuguese club Maritimo Da Madeira SAD
(hereinafter, “Maritimo”) regarding the training
compensation due by the latter after the signing of
the Brasilian football player Anderson Gomes de
Lima (hereinafter, the “Player”).
In its decision dated 6 August 2009, the FIFA Dispute
14.According to to Annexe 4, Art. 1, p. 1 of the FIFA Regulations on the Status and Transfers of
Players (hereinafter, “RSTP”): “Training compensation shall be payable, as a general rule, up
to the age of 23 for training incurred [from the age of 12] up to the age of 21, unless it is evident
that a player has already terminated his training period before the age of 21”.
15. A free agent is a player whose labour contract with a club has expired and thus is eligible to
sign with any other club without the consent of its previous one. Pursuant to Art. 18, p. 3 FIFA
RSTP “A professional shall only be free to conclude a contract with another club if his contract
with his present club has expired or is due to expire within six months”.
16.Annexe 4, Art. 4, p. 1 RSTP
In particular the Player was born on 18 May 1985 and
was registered for Coritiba from 1 March 2005 until
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Resolution Chamber condemned Maritimo to pay the
entire sum requested by Coritiba.
of the contracting party on the same conditions
as those stipulated in that regional integration
process20. As a consequence, Maritimo contended
that the provisions of the Treaty had to be
considered as an extension, for Brazilian workers
like the Player, of the regime granted by Portugal
to its national citizens or to the foreign citizens
falling under the scope of the regional integration
process implemented by the European
Community Treaty (hereinafter, “EC Treaty”).
THE PROCEDURE IN FRONT OF CAS
Maritimo Position
Maritimo’s grounds to challenge the FIFA decision in
front of CAS may be summarized as follows:
• FIFA rules set different conditions as regards the
payment of training compensation. In particular
Annexe 4, Article 6 RSTP establishes special
provisions for the EU/EEA territory. Amongst
these provisions it has been stipulated that
training compensation is not payable by the new
club to the former club if the latter one does not
offer the player a contract in writing, via registered
post, at least sixty days before the expiry of his
current labour contract17.
• Moreover, pursuant to Article 19 of the Swiss
Private International Law Statutes (hereinafter,
“PIL”)21 the Treaty had to be applied directly and
mandatorily, thus superseding any provisions of
FIFA regulations that would be contrary to its Art.
47.
• In light of this concept, Brazilian players, as
workers, could benefit from special provision and
conditions of Annexe 4, Art. 6 RSTP. In the case at
hand, this would result in Coritiba having lost its
entitlement to training compensation by not
offering the Player a new contract.
• In the present case Coritiba did not offer the
Player a contract prior to the expiration of his
current one.
• Although the above mentioned exception is only
applicable to players moving from one Association
to another inside the territory of the EU/EEA18,
Maritimo referred to the “Treaty of Friendship,
Cooperation and Consultation between the
Federative Republic of Brazil and the Portuguese
Republic” (hereinafter, “Treaty”), and to its Article
12 in particular, from which it derives that
Brazilian nationals in Portugal and Portuguese
nationals in Brazil have the same rights19.
17.According to Annexe 4, Art. 6 RSTP other two further conditions referred to the offer of a
contract by the previous club of the player apply, namely that such an offer must be at least of
an equivalent value to the current contract or, in the event the former club does not offer a new
contract, that it happened due to exceptional circumstances as for example the relegation in a
category where clubs cannot sign professional players. If these alternative conditions are met,
the former club does not lose its entitlement for training compensation.
18.Annexe 4, Art. 6, p. 1 RSTP
19.Art. 12 Treaty reads as follow: “Brazilians in Portugal and Portuguese in Brazil benefiting from
equal status shall enjoy the same rights and be subject to the same duties as nationals of
those states, under the terms and conditions of the following articles”.
20.Art. 46 Treaty: “Nationals of one Contracting Party may have access to the exercise of a
profession in the territory of the other Contracting Party on the same conditions as those
required by nationals of the other Contracting Party”. Art. 47 Treaty: “If access to or exercise
of a profession is regulated in the territory of one Contracting Party by provisions arising from
its participation in a regional integration process, nationals of the other Contracting Party may
have access to and exercise that profession in the territory of the first Contracting Party on the
same conditions as those stipulated for nationals of the other States participating in that
regional integration process”.
21.Art. 19 PIL: “VII. Consideration of mandatory provisions of foreign law. When legitimate
interests are manifestly preponderant over the swiss conception of law, a mandatory provision
of law other than those provided by the present law may be taken into consideration, if the
situation described has a strict relation with that provision. In order to judge if such disposition
should be taken into account, it must be considered the result that aims its application, to
reach a proper decision under the Swiss concept of law”.
• In addition, Article 46 and Article 47 of the Treaty
set that nationals of one contracting party may
have access to and exercise a profession in the
territory of the other party on the same conditions.
It further states that if access to a profession is
regulated in the territory of one party by provisions
arising from its participation in a regional
integration process, the nationals of the other
party may exercise that profession in the territory
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OPINION ARTICLES
Coritiba Position
equal status referred to in the Treaty, pursuant to
its Article 15 above mentioned, nor that an equal
status was anyway granted to the Player.
Therefore the application of Article 12 of the
Treaty was excluded.
Coritiba’s main arguments may be summarized as
follows:
• As to the applicable law, referring to Art. 187 PIL22
and to CAS Code, the dispute had to be decided
pursuant to RSTP, which had been chosen by the
parties, and additionally by Swiss Law: this
excluded per sè the applicability of the Treaty.
• Regarding Article 46 and Article 47 of the Treaty,
which were considered directly applicable, the
rights granted by such provisions, although
directly applicable, apply only to individuals as
workers and not to clubs as their employers. This
application was also confirmed by expert
witnesses during the hearing held at CAS. The
fact that the employers, as Maritimo, could gain
an indirect benefit from the application of the
provisions of the Treaty, was insufficient to admit
that the rights expressly conferred to the workers,
as the Player, could be deemed as conveyed to
their employers. For these reasons the claims of
Maritimo based on Article 46 and Article 47 were
rejected.
• The Portuguese and Brazilian citizens, according
to Article 15 of the Treaty, have not an automatic
equal status. In case of Brazilians, the equal
status is granted by the Ministry of the Interior
upon specific request and on some particular
conditions. There was no evidence that the Player
had applied for such recognition.
• In the case CAS 2008/A/1485 (hereinafter,
“Midtyjlland Case”)23 the Panel refused to directly
apply the provision of an international treaty
signed between several African countries and the
European Community, the so called Cotonou
Agreement, over the RSTP.
• The Panel then focused its attention on the
special exemption of Annexe 4 Art. 6 RSTP and
underlined that the application of such provision
depends on the location of the transferring clubs
and not on the nationality of the players. Due to
this specific reason, the difference made by RSTP
between a transfer within UE/EEA and outside
this territory is thus not based on the nationality
of the Player and therefore does not contravene
the provisions of Article 46 and Article 47 of the
Treaty.
• Conform to a recent decision of the European
Court of Justice on 16 March 201024, the provisions
regarding training compensation are not to be
considered as contrary to EC Law, thus the
application of FIFA regulations, in this case, could
not be deemed as contrary to EC Law.
On these grounds, Coritiba requested CAS to confirm
the FIFA decision.
• Finally, it was pointed out that, in a concrete way,
the Player had neither been prohibited to access
the Portuguese labour market nor to exercise his
profession, as the transfer occurred and the
working relationship at Maritimo began.
CAS Decision
The Panel issued its award addressing the following
two main questions:
1. Does the Treaty grant any right to Maritimo?
22.Art. 187 PIL: “VIII. Decision on the merits - 1. Applicable law - 1 The Arbitral tribunal shall
decide the case according to the rules of law chosen by the parties or, in the absence thereof,
according to the rules of law with which the case has the closest connection.
2 The parties may authorize the Arbitral tribunal to decide ex aequo et bono”.
23.CAS 2008/A/1485 FC Midtjylland A/S v./ FIFA
24.Case C_325/08 Olympic Lyonnais v./ Olivier Bernard and Newcastle United FC
• The Panel considered, as opposed by Coritiba,
that in the present case there was neither
evidence that the Player had applied to obtain the
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2. Does the principle of freedom of movement of
workers, according to Art. 39 of the EC Treaty
grant any right to Maritimo?
the training ones26. A player, the employee of the
club, lacks of standing to sue and thus, without the
possibility to convey his rights to his employer, is
prevented to protect them in FIFA proceedings facing
a potential denial of justice.
Maritimo applied for the applicability of Article 39 of
EC Treaty, on the freedom of movement for workers
inside the EU, was applicable to the dispute through
Article 47 of the Treaty. Once again the Panel clarified
that, according to the case law of CAS (as, inter alia, in
the Wilhelmshaven Case25), the arguments related to
the freedom of movement of workers are only
available to individual players and not to the club
employing these players.
Furthermore, we believe that the Panel was right to
rule that the application of the EU/EEA exception
provided by RSTP is dependent upon the location of
the transferring clubs and not on the nationality of
the players, as clarified in the Willemshaven Case. As
to this argument, it is interesting to note that a
different Panel, in the Midtyjlland Case27, considered
theoretically possible, on the grounds of the
Simutenkov Case28, for a club located into a nation
which has stipulated a bilateral agreement with the
EU for the freedom of workers, to enlarge the
applicability of an EU/EEA exemption29 of RSTP also
to that particular nation.
In the light of these two main arguments, CAS
rejected the request of Maritimo and confirmed the
FIFA decision in full.
COMMENTARY
The case at hand is a further example of the attempts
put forward in the last years by clubs to challenge the
FIFA training compensation system applying to the
football world the broad concept of freedom of
movement for workers. This concept is expressed
both in the EC Treaty and in some other particular
treaties, like the Treaty between Brazil and Portugal
in the present dispute or the Cotonou Agreement in
the Midtjylland Case.
The bilateral agreement in such case, the Cotonou
Agreement, conferred rights only to foreigners
lawfully employed and not to other categories of
citizens like students or amateur players. The same
rights were referred to employment terms, as
remuneration or dismissal, and not to the access to
the employment market, as in the case of a football
transfer. As a consequence, being the players in the
Midtyjlland Case students and not foreigners legally
employed, the exception was therefore considered
not applicable.
The reasoning of the Panel to dismiss the request of
the Portuguese club is in line with the previous CAS
jurisprudence.
In particular it has been established that the rights of
the Treaty, and of the EC Treaty, apply only to
individuals as workers and not to their employers.
Besides, the protection of these rights is expressly
conferred to the workers and could not be deemed as
conveyed to their employers. Therefore, in the football
world, the rights apply only to players and their
protection cannot be conveyed to their clubs acting in
front of FIFA. Despite this view, it must be also
considered that training compensation procedures
pursuant to RSTP can involve only the new club and
25.CAS 2009/A/1810-1811 SV Wilhelmshaven v./ Excursionistas & River Plate
26.Art. 22(d) and Annexe 4, Art. 3, p. 1 RSTP
27. CAS op. cit., §7.4.5 to §7.4.16
28.European Court of Justice C-265/03 Igor Simutenkov v. Ministerio de Educacion y Cultura and
Real Federacion Espanola de Football
29.In the Midtyjlland Case it was the EU/EEA exemption provided by Art. 19 RSTP.
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However, on the basis of the same reasoning, it
seems to exist a potential “open door” for the
application of the EU/EEA exception in cases with
different factual background. That is to say when i) a
player is transferred from a nation located outside
the EU/EEA, which has a bilateral agreement with
the EU on equal working conditions, and ii) he can
demonstrate that the salary offered by his new club
has been affected, i.e. reduced, as a direct
consequence of the fact that his new club had to pay
training compensation to his previous club which had
not offered him a new contract. Upon such conditions,
it seems plausible that a Panel could consider to
deviate from the constant jurisprudence and to
exclude the payment of the training compensation,
applying the EU/EEA exception, despite the fact that
the previous club is established in a country located
outside the EU/EEA territory.
Affaire à suivre!
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OPINION ARTICLES
NUMBER
June – October 2010
The present newsletter was elaborated by the EPFL
Research and Communications unit, composed by
researchers Ezéchiel Abatan and Pedro Presa, under
the general coordination of the EPFL CEO Emanuel
Macedo de Medeiros.
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between EPFL Members and Associated Members
and the information herein contained is given in a
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only. It shall not be used as a suport document for
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authorized by the EPFL in writing and does not
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