Sports Law and Policy in the European Union: Recent Developments

1. Sports Law and Policy in the European Union: Recent Developments Dr. Anastasios Kaburakis Southern Illinois University Edwardsville

2. Symposium scope • European Commission’s (EC) White Paper • Case Law & Policy developments • Transfers, restraints, & athletes’ rights • Discussion

3. EC White Paper on Sport • 12 years after Bosman, the time came for the first official position by the EC (7/11/2007) • Action Plan embedded • Disappointed many constituents, esp. International Sport Federations (ISFs) • In the interim • Lobbying for the new EU Constitution + Sports position within the Reform Treaty Draft • Nice 2000 Declaration of sport specificity • Independent (?) European Sport Review 2006

4. EC White Paper on Sport • The societal role of sport • Develop and support guidelines and research for PE • Collaborate with Law enforcement to fight doping • Support network of Member States’ (MS) agencies • Fund education-based sport programs • Nurture young sport talent training • NOTE: “Locally trained players’ rules” could be deemed compatible with EC Treaty Law if they do not lead to direct nationality discrimination AND • …if possible indirect discrimination effects resulting from them can be justified as being proportionate to a legitimate objective pursued, such as to enhance and protect the training and development of talented young players • Organize fight against violence and racism via new instruments • Promote girls’ and women’s access to sport (incl. admin/mgmt posts) • Create policy attending to international transfers, doping, exploitation of underage players, money-laundering, and security during major events Note: The only unresolved matter

5. EC White Paper on Sport • The economic dimension of sport • Fund research and develop financial impact instruments (utilized by MS – EU) • Fund non-economic quantitative & qualitative research (Eurobarometer polls, participations rates, volunteerism data, etc.) • Fund study to assess sport’s direct (GDP, growth and employment) and indirect (education, regional development, EU attractiveness) impact • Organize exchanges b/t ISFs and MS re: major events best practices promoting sustainable economic growth, competitiveness, and employment • Fund ind. study on grassroots and sport for all financing • Defend reduced tax rates for sport

6. The problem of proportionality test case-by-case application EC reserving the right to enforce EU Law v. ISFs EC White Paper on Sport • The organization of sport The crucial balance b/t self regulation and respect for EU Law NO EXEMPTION (YES!) • Specificity of sport prisms • Sport-specific rules, limits on #s, comp. equity and uncertainty of results • The pyramid, autonomy, structure of sport orgs and grassroots solidarity mechanisms, keep one gov. per sport • Combat nationality-based discrimination • Fund non-EU nationals individual competitions study • Transfers: Problematic area, w/o per se EC goal/plan • FIFA Rules are appreciated as prudent practice • Guarantee access to national courts, protect minors’ education, etc. • Seeds for a verification system (objectivity if run…?) by ISF OR MS • Fund impact assessment re: players’ agents to determine EU action • “Player trafficking” problem; EC study on child labor + Communication b/t MS • Support public-private anti-corruption partnerships • Investigate licensing best practices models • OK on both collective & individual clubs selling media rights • Social dialogue promotion and continuous follow-up

7. National Club

8. ISFs World Championships & Olympics CFs Continental (e.g. European) Championships NFs- NGBs National teams Regional Assoc. Regional select teams Senior Clubs Jr. Clubs, Rec, & School

9. Champions League, Euroleague ISFs FIFA/UEFA, FIBA/FIBA Europe CFs Professional Leagues Associations (ULEB, G14) NFs & NGBs Professional Clubs Associations (EPL, ESAKE) Top (pro) competition (Super Leagues, A1, A2) Lower levels (amateur or pro-am; Divisions II, III, IV, V, etc.) + Promotion and relegation Regional Assoc. Promotion to First team Senior Clubs Junior Clubs (U12, U14, U16, U18) High School and College competitions Jr. Clubs, Rec, & School

10. EU Competition Law Application to Sport • EC Treaty – C 325/35, 12/24/02 • EC Treaty promotes competitive market economy and prevents barriers to integration of the single European market • Article 3 (g): No competition distortion • Article 81 (1 & 2): Anti-competitive agreements prevention • Article 81 (3): Exceptions for promotion of technical and economic progress—allowing consumers a fair price (EU–“sui generis” Rule of Reason) • Article 82: Abuse of dominant position w/i the common market prevention, insofar as the abuse may affect inter-member trade • Article 86 et seq: Allow for State Aid to sport clubs via socio-cultural approach

11. Case Law – ECJ Jurisprudence • C-519/04 P Meca-Medina & Majcen v. Commission, ECR 2006 I-6991 • Swimmers challenged anti-doping rules’ compatibility w/ EC Art. 81 & 82 (a first, Bosman et seq. did not apply Comp. Law) • ECJ important detour from Walrave (1974) and Dona (1976) re: “purely sporting interest” • Adoption of new methodological approach (case-by-case) currently followed by the EC

12. The Meca-Medina Test • Step 1: Is the Association an “undertaking or Association of undertakings” • It is if it carries an economic activity itself • It is an Association of undertakings if its members (clubs – athletes) exercise economic activity • Step 2: Does the rule restrict competition (81§1) or abuse a dominant position (82) • Overall context and objective pursued • Restrictions inherent to objectives • Proportionate in light of objectives • Step 3: Does it affect MS trade • Step 4: Does it fulfill conditions of 81§3 (≈ RoR)

13. Oulmers • C-243/06 Charleroi & G-14 Group v FIFA (Oulmers) • Belgian Commercial Court referred Q to ECJ: • Do obligations of clubs to release players w/o compensation and the • Unilateral and binding determination of international matches calendar • Constitute unlawful restrictions of competition • Abuses of a dominant position or • Obstacles to the exercise of fundamental freedoms (per EC Treaty Art. 39, 49, 81, and 82)?

14. Oulmers • Charleroi lost the services of Oulmers after injuries sustained during international competition with the national team of Morocco • G14 claiming €860mil. in various damages from FIFA (rejected by the Belgian Court) • September 2006: FIFA’s lead counsel, Heinz Tännler, observed that FIFA might consider establishing an insurance and compensation fund for international players (criticized due to time constraints and unilateral level of action by FIFA v including clubs in the decision-making process) • The matches calendar issue was not addressed • UEFA strategy involved FIFPro & EPFL

15. Historic agreement – 1/15/2008 • Oulmers settled; G-14 disbanded; European Club Association (ECA) formed after UEFA/FIFA signed Memorandum of Understanding w/ G-14; ECA=103 clubs representing 53 NFs/NGBs, based on sporting achievement, i.e. UEFA’s biennial ranking • FIFA/UEFA will make available $252mil. (110+142) for clubs’ (with national team players’ representation) compensation & insurance • Euro2008 sums split 3 ways (≈ $5,900/day) to: current club, previous season’s club, club w/ player’s license up to two years prior to international competition • Assurances by FIFA/UEFA reducing #s of preliminary games for national teams’ competitions

16. CAS 2007/A/1298-1299-1300Webster (& Wigan) v Hearts • Most recent (CAS award: 1/30/2008) • Important precedent re: terminations upon breach w/o cause (post-protection) • FIFA Protected Period: • 3 contract years pre 28th birthday • 2 contract years post 28th birthday • Unilateral termination by player w/o cause w/i Protected Period = sanctions (4-6mos*) + $ to club • Webster breaches w/o cause post Protected Period – Compensation owed to club? • FIFA Dispute Resolution Chamber (DRC) set damages at £625,000 (inexcusably according to CAS), whilst Hearts claimed £4.9 million (estimated market value at £4mil.) *Up to 18mos J.C. Drolet (2008)

17. CAS Award 1/30/2008 • Compensation to Hearts set at the remaining value of the contract, £150,000 + interest • Highlights: • Panel finds there is no economic, moral or legal justification for a club to be able to claim the market value of a player as lost profit • Possible entitlement to the transfer or market value is entirely absent [in FIFA rules and player’s contract] …to imply it into the contract would contradict both the principle of fairness and the principle of certainty • Compensation… should not be punitive or lead to enrichment … put clubs and players on equal footing

18. CAS Award 1/30/2008 • …no reason to believe that a player’s value owes more to training by a club than to a player’s own efforts, discipline and natural talent… a talented and hardworking player tends to fare well, stand out and succeed independently from the exact type of training he receives, whereas an untalented and/or lazy player will be less successful no matter what the environment… market value could stem in part from charisma and personal marketing • …it would be difficult to assume a club could be deemed the source of appreciation in market value of a player while never be deemed responsible for the depreciation in value... if the approach relied on by Hearts were followed, players should be entitled to compensation for their decrease in market value caused by being kept on the bench for too long or having an incompetent trainer, etc… such a system would be unworkable… …Would it?

19. CAS Award 1/30/2008 • …giving clubs a regulatory right to the market value of players and allowing lost profits to be claimed …would in effect bring the system partially back to the pre-Bosman days when players’ freedom of movement was unduly hindered by transfer fees …becoming pawns in the hands of their clubs and a vector through which clubs could reap considerable benefits without sharing the profit or taking corresponding risks… [It would] be anachronistic and legally unsound • Discussion topics: • Protected Periods – Sound Policy or (in)direct discrimination • (Gabe Feldman would love…) The less restrictive alternative? • A medium b/t liquidated damages and protected periods?

20. Transfers • UEFA report 1973: “It will come a moment in which individuals will start to claim their rights under EC law for free movement and employment. The professional players will then have a tendency to invoke free movement to attack the international structure of football” (UEFA 1973:5) • After Bosman (1995) the nationality quotas were lifted immediately, however the transfer system entered into long series of negotiations b/t the EC and FIFA/UEFA (frictions b/t the two) • FIFA & FIFPro v UEFA • 3/2001 FIFA/UEFA agreement w/ EC (w/o FIFPro) • 7/2005 New FIFA Transfers and Status of Players rules

21. Players Restraints • Non-EU nationals may benefit from non-discrimination treaties • Association and trade agreements (Kolpak, 2003 and Simutenkov, 2005) • Cotonou agreement (ACP countries)

22. Players Restraints • UEFA Homegrown Rule (off: “Locally Trained Players”) • EC dismissed early post-Bosman idea (4/96) • EC and EP sympathetic to the idea (2005) • 8 players shall be “locally trained” (08-09; 6 for 07-08) • 4 “Club trained” + 4 “Association trained” (3+3 for 07-08) • “Club trained” = Registered w/ club for 3+ years/seasons while 15-21 • “Association trained” = As above registration by club OR by other clubs affiliated to the same Association • Reduced squad size (25) • No mention of nationality Note: The only unresolved matter

23. Players Restraints • Fixed-Term Contracts • Bosman creating new transfer system • ISFs decide on particular length • FIBA (H3.4.3: 1-4 years) • FIBA Europe (94.2.3: 1 year min.) • FIFA (Transfer Rules Art. 18.2: 1-5 years) • Under 18 (3 years max.) • IIHF (11.3: spec. term) • Termination for just (and sporting just) cause • If an “established pro” played <10% official matches • Case-by-case, no sanctions, +compensation

24. Players Restraints… but also benefits • Tax exemptions (for national team and club play) • Preferential treatment for athletes U-18 with participation on national teams and nationally competitive clubs re: University entrance examinations • Civil service, government, sport administration positions, and exclusive licenses to operate sport betting offices • Immigration Law exemptions

25. Greek Sport Law ν. 2725/1999 (ΦΕΚ 121 Α΄) • Pro sport contract duration: ½ - 5 years • 18th birthday + obligation to sign with the current club a 1-3 years contract; the player can agree to extend the duration to 5 years • Agents can sign up to 20% of players on each team of the particular league • “National team service is the utmost obligation of the athletes…” • Sanctions involve competition ban for national team and club games, as well as termination of various benefits received from the state. • Compelling reasons for U-18 transfer: • Club solvency, lack of BoD, lack of financial support for athlete, “mental and psychological separation” b/t club and athlete, lack of monitoring athlete progress, lack of medical insurance coverage and physical fitness documentation

26. FIBA • Minor (but key) differences b/t FIBA and FIBA Europe rules (e.g. first pro contract duration) • Noted restraints • No international transfer U-18; exceptional cases referred to Secretary General of FIBA • Mandatory first pro contract procedure, favoring development club • Compensation system upon player refusal • Redistribution of sum by Federation to development club(s) • Option of FIBA to decide on transfer fee amount

27. FIBA • Noted restraints • Licensing and Letter of Clearance restrictions • National team – related restraints: • Obligation of club to release the player “without any financial indemnity” and cover player’s insurance • FIBA Europe forecasts: Federations need to insure player contracts with the club as the beneficiary • Obligation of player to reply affirmatively • Sanctions for club and player (FIBA H.3.6.3.4; FIBA Europe 102) • FIBA Europe – ULEB entanglement

28. FIBA—NBA • 3/14/1997 FIBA—NBA agreement • FIBA Europe/ULEB calls for amendments • Annual renewal • Purposes: • Honor valid contracts on both sides • Ensure compensation for US players on FIBA teams • Introduce binding and final arbitration

29. FIBA—NBA • Agreement specifics: • “Player Contract = written agreement for a specified term and for a specified salaryor other compensation.” • Licensing system, Letters of Clearance, mutual requests re: contract status • “Any disputes… shall be resolved finally and conclusively by an International Arbitrator” • Mutual best efforts deterring interference w/ contract • But for date conflicts, NBA shall permit participation on national teams, and will not impede directly or indirectly such participation. NBA will not request any fees from player or Federation, except reasonable and adequate insurance coverage

30. New FIBA ADR – FAT • New FIBA ADR–FIBA Arbitral Tribunal (FAT) • New contracts + FAT arbitration clause • Court of Arbitration for Sport (CAS) • Appeals (+waiver of Swiss Federal Tribunal appeal) • Could CAS contribute to NBA-FIBA disputes? • “Greek Tragedy” of first case… • PAOK never showed up… never paid award & fees… yet never sanctioned! Claimant paid Respondent’s fees to move! • How about those fees…! $5,000 non-reimbursable to move (each) + $5,000 advance costs (each) • Compare w/ AAA fees schedule ($500K-over $10mil!)

31. FIFA Pre-Oulmers settlement • Recent change of national teams’ eligibility requirement for international competition in favor of citizenship • Obligation of clubs to release players for national teams’ matches, w/o compensation/insurance coverage (Transfer Rules Annex 1, Art. 1-3) • “As a general rule, every player… is obliged to respond affirmatively” *

32. FIFA • Contract duration: 1 season – 5 years, except as permitted by national law (Transfer Rules Art. 18.2) • Under 18 (3 years max.) • No “tapping up” • No unilateral termination but for: • Just Cause* • Sporting Just Cause** (established professional… appeared in less than 10% of official matches… 15 days after end of season)

33. FIFA • The validity of a contract may not be made subject to a positive medical examination and/or the granting of a work permit(Transfer Rules Art. 18.4) • “Protected Period” (PP) significance: • Sporting sanctions for breach w/o cause w/i PP • No sporting sanctions for breach w/o cause post-PP • Breach w/o cause results in compensation • DRC/CAS decide on compensation for breach, covering all benefits, including additional compensation… up to six monthly salaries Remember Webster, CAS 2008

34. FIFA – The Transfer system • International Transfers U-18 exceptions: • Non-athletically related parental move • Move w/i EU/EEA when 16-18, providing for • Highest quality athletic training • Academic and/or vocational education • “Best possible” living conditions • Documentation with National Federation • Living close to foreign club (50-50-100km rule)

35. FIFA – The Transfer system • Training Compensation payable: • When player signs first pro contract • On each transfer b/t different Associations’ clubs until 23 • For training incurred U-21, unless: • Training terminated before 21 in which case • Amount payable calculated b/t 12-year of training

36. FIFA – The Transfer system • Training compensation is not due upon: • Unilateral club termination w/o just cause • Transfer to Category 4 club • Reacquisition of amateur status • First pro contract involves training compensation for all clubs since age 12 • Subsequent transfers compensate last club for “total time effectively trained”

37. FIFA – The Transfer system • Training costs are set for each Association club category (up to 4) • Costs correspond to amount needed to train each player annually, multiplied by an avg. player factor (amateurs/pros rate) • Lists updated annually • Costs involved “as if the New Club trained the player itself” • 12-15 training costs = Category 4 clubs

38. FIFA – The Transfer system • Solidarity mechanism • 5% of total compensation paid to former club – excluding training compensation – will be distributed by new club to training and educating club(s) (12-23) • 12-15: each receiving 5% (i.e. 0.25% of total $) • 16-23: each receiving 10% (i.e. 0.5% of total $) • No age restriction for solidarity funds

39. IIHF—NHL • 2007 NHL Draft featured No1 and 2 US picks (1st) • Appx. 30% of NHL players = Euros • IIHF & NHL cooperation (-Russia) for 12 years • 7/12/2007 New four-year transfers agreement • Deadlines for draftees and non-draftees • IIHF players w/o contract may sign as NHL free agents • NHL pays development fee of $9mil. for the first 45 IIHF players drafted ($200K per add. Player – NHL Draft 7 rounds) • NHL + additional $100K late signing window fee • NHL + $ 50-100K compensation for IIHF players <30 games (funds used for players outside per se scope, i.e. US and CAN Junior Clubs  NHL) • Release for 2010 Olympics and World Champs. • Russian risk… NHL teams cannot acquire Russians under contract but can sign free agents (Russian Federal Sports Law on Transfers v. Labor Law + ADR problems)

40. IIHF—NHL • Yashin, Ovechkin, Malkin cases • Yashin lost in arbitration and returned to NHL • Ovechkin and Malkin were allowed to compete for their NHL teams • Russian teams ≠ injunction (+antitrust, breach of contract, arbitration agreement, tortuous interference claims) • NHL + Russian Labor Law (termination + 2 weeks’ notice) + Duress prior to signing

41. Conclusion • Trying to balance a traditionally conservative approach to sport policy, allowing for self-regulation of sport by ISFs, preserving the pyramid, etc. with a new liberal economic and labor reality in the EU (BUT market forces v. interventionism preserving pyramid and socio-cultural mores of EU sport?) • If an exemption for several aspects of the sport sector were to occur, what would it mean? • The US provides us with valuable lessons • Judicial and Legislative exemptions would defeat their purpose of protecting sport development, w/o controls such as salary caps, drafts, competitive balance mechanisms, redistribution of funds, and important labor considerations ≈ NLRA//CBAs • Particularly for EU sport, dialogue and compromise=imperative

42. Conclusion • Sport per se regulations and restraints may still pass EC and ECJ muster; the scope and means will determine outcome • ECJ will not need to “legislate from the bench”, provided ISFs follow the path of compromise and flexibility; w/o club participation there could be no (fair) EU sport policy • Theoretically, in Oulmers the ECJ could have sided with the G-14 (≈ Piau, re: Application of Comp. Law, dominant position by FIFA as an association of undertakings); the calendar could have changed, but international comps. and representation would not; the ECJ would not provide clubs with € and insurance coverage, FIFA & G14 (now ECA) will • There is a lot of work to be done by EU MS legislatures (Meca-Medina, Piau, Oulmers, Placanica, Articles 86 et seq. state interventions…)

43. Two Greek Cents Changes that may be in order • FIFA Transfer system • “Protected Period” serving its purposes? • FIFPro & UEFA (now via ECA) need to pursue a CBA • Considerations promoting national interests and local talent arguably have no place in 21st century integrated international sport; if the US pro leagues do not impose nationality-based criteria, we should not either… The better talent needs to be supported. Local talent may be cheaper. The “Home-Grown” rule is an eloquent and intelligent way to postpone the unavoidable… It’s one world of sport.

44. Two Greek Cents Changes that may be in order • Age discrimination issues should be addressed • Minimum and maximum length contracts are there for a reason. 4-5 years max OK; w/o a CBA in place clubs need to be kept at bay; minors’ contracts status (FIFA’s 3-year limit appears reasonable) should be monitored and player benefits’ provisions enforced • Termination due to lack of club solvency • “Sporting just cause” termination… Impressive deviation from labor norm… • Other preferential benefits and exemptions may need to be revisited (tax and immigration provisions, civil service and governmental appointments, educational exceptions)

45. Two Greek Cents Changes that may be in order • FIBA’s compensation and U-18 international transfers’ system needs an objective adjudicator • FIBA-Europe and ULEB – Relationship needs clarification • FIBA-NBA agreement – Time to update (WNBA season-FIBA Worlds conflict, arbitration switch in favor of CAS, omit “other compensation” etc.) • “Mandatory” first pro contract w/ development team… (FIBA & NGBs) • FIBA’s and FIFA’s club release policies and players obligations to respond in the affirmative needn’t be posed herein for amendment…

46. Two Greek Cents Changes that may be in order • FIBA & FIFA need more staff, their administrative review committees and dispute resolution panels need a form of a Clearinghouse • Strictly enforce sanctions (sporting and damages) and educate minor clubs’ administrators re: contractual obligations and budgetary planning • Distinguish b/t trades and unilateral breaches (revisit legal fiction of signing club culpability, i.e. reverse BoP); make trades conditional

47. Two Greek Cents Changes that may be in order • FIFA Transfer system • U-18 international transfers provisions OK • Compensation system unconvincing (subjective clubs’ classification system, composition of annual lists, 12-15 equated to level 4 clubs, age discrimination (±23), defers to NFs for local transfers) • If kept in place, fair treatment of all clubs (developing and ensuing purchasing clubs) OK • Solidarity payments appear to be balanced and EU Law abiding; need to extend to NFs

48. Two Greek Cents Changes that may be in order • NHL–IIHF agreement + Russian ratification (clubs’ and players’ benefit; Russian labor law re: contracts termination and Fed. Sports Law amendments) • NHL may wish to re-negotiate paying less for later rounds’ picks; NHL may further benefit from amending portions referring to players <30 games • UEFA clubs’ “sweat shops”? UN and EU human and children’s rights accords need enforcement • International sports academies, educational, cultural and athletic programs exchange are outstanding avenues promoting pluralism, respect of differences, research of problems and feasible solutions.Colleagues can achieve the same purposes through collaborative efforts such as this Conference, so… Thank you SRLA

49. Discussion • US-EU research collaborations? Joint grant and external funding props? • EC White Paper funds, directions, striking a balance?

50. Discussion • Sport-specific EU Law exemptions? • Tax breaks, special liquidation, state-aid, etc? • How do we solve the “Home-Grown” Q? • Nationalistic regulatory tendencies? Think Kolpak, Simutenkov, And Cotonou agreement…