Dr. Anastasios Kaburakis

UPDATE: Tuesday, April 13, 2010

Impressive, and congrats to all involved! The delayed enrollment portion of 09-22 indeed suspended for 2010-2011. Solid work from many constituents in order to maintain the crucial balance embedded in 09-22. Outstanding and inspired work from Amateurism Cabinet and Legislative Council (LGC) members. Also major kudos and congrats to the several coaches associations, compliance professionals, and many stakeholders who presented solid arguments and precedent/research-based data that would build a strong case for the LGC to agree on amending 09-22 and suspending the delayed enrollment portion. And a note of recognition to a group that rarely receives praise, but most frequently is chastised and criticized in popular media: the national office staff… Their efforts should be appreciated by all involved parties, in streamlining the legislative process, engaging in constant educational and communication outreach efforts, learning and teaching key constituents (and each other) in the membership’s usually mercurial course of policy-making. There are good, balanced, hard-working, highly motivated people in Indy right now, trying to maintain the extremely delicate balance between the Association’s principles and contemporary reality, which often just does not allow for maintaining the traditional principles this miracle of higher education and sport entailed from its creation through the 20th Century.
As always, a word of caution to keep the balance: this means that recruiting will be fierce this year (especially during what is left in the spring and summer recruiting periods with 2010 prospects who might have been untouchable until now but will be pursued even for this Aug enrollment) and going into the 2010-2011 season (with coaches further aspiring at recruiting-friendly amendments during the 10-11 legislative cycle). Hopefully coaches will remain constrained by their values and upholding the Association’s fundamental principles. If they do select to go the route of cut-throat intercollegiate athletics recruiting and competition in a take-no-prisoners industry, they may get their wishes fulfilled… On one hand, what most everyone agreed on, they will be able to recruit (pre-HS graduation) kids that will be immediately eligible even though they did play professionally, as long as the 12.02.4 provisions and expenses’ aspects analyzed below are in place. On the other hand, most remarkably, it will not even matter if currently recruited or now recruitable prospects graduated HS as early as the summer of 2006 (!) when they were 16, i.e. in the case of UK soccer SAs, and played pro/semi-pro for the past 4-5 seasons, but without going above and beyond actual and necessary expenses and abiding by 12.02.4 (worth here to put another plug-in to our mystery colleague at the Bylaw Blog for simply outstanding work, truly brilliant and insightful posts, for a creation that the world of Compliance and the industry needed for some time… keep the mystery and solid contributions going).
Shrewd coaches will start today, if not already, to look at such prospects, research their particular academic and amateurism conditions, encourage them to immediately register with the Eligibility Center, and we could be looking at an amazingly competitive recruiting and playing season in 2010-2011, and possibly beyond… This year’s gate might involve hard to control floods in ensuing years, even after a modified proposal on delayed enrollment and organized competition attempting to keep the balance between deregulation and upholding amateurism/institutional control/SA welfare/competitive equity principles in the 2010-2011 cycle.
So go crazy in what is left with this year’s recruiting period, find your athletically seasoned and hopefully academically prepared difference-makers, continue to provide the exquisite opportunities for young athletes to experience the true blessing that is higher education in the US, enjoy the process of building bridges between the worlds, have fun… and please recruit responsibly!

For a retrospect on Proposal 2009-22, refer to earlier entries here.

After considerable deliberation, membership feedback, and Amateurism Cabinet recommendations, the Legislative Council (April 12-13, Indy meetings) Read more…

admin NCAA

Next to the amateurism developments elaborated below, it is good to review the article on international student-athletes in the Fall edition of NCAA’s Champion Magazine here. Also interesting to peruse, a recent article on ESPN here, and a very recent one from SI here.

admin NCAA

Proposal 2009-22 progress in 2010 and commentary here.

UPDATE III: As anticipated, Proposal 2009-22 was adopted (note: Prop. 2009-22 amendments vote tally; pp 4, 9,  10) last Thursday, January 14, 2010, by the DI Legislative Council, pending Board of Directors review.  There were significant last minute amendments pertaining to the effective date for tennis SAs, now set for Aug. 1, 2011, and the exclusion of skiing from the scope of the proposal.
Prior to the Legislative Council’s voting sessions, there were some additional concerns expressed by stakeholder groups, such as the American Swimming Coaches Association (p.15; Skiing Committee’s position on pp 21-22), recommending defeat or exclusion from the scope of the proposal.
Congratulations to all involved in passing this important legislative piece. During the seven months leading to Aug. 1, 2010 (effective date but for tennis SAs), a broad and in-depth membership educational effort will be needed for coaches, compliance staff, and other athletics administrators to fully realize recruiting opportunities and prepare for new challenges in this evolving era. As elaborated below, more “difference-makers” will be within coaches’ recruiting plans, thus an expansive research effort and cooperation between all constituents will be necessary to retrieve good data and as much sport-specific, case-by-case, useful information as possible on, e.g. allowable actual and necessary expenses in each region and sport.

Many PSAs, especially international prospects, and their families will be relieved to read these lines, as will be the several coaches, compliance personnel, and athletic directors who observed SAs serving withholding conditions and sitting out games due to the fact they played at a high level of competition, albeit without compensation, contracts, or agents, rather due to their country of origin sport system structure. The “no more vicarious professionalization” message disseminated by the membership, through the Amateurism Cabinet, to the Legislative Council, Board of Directors, and back to the membership soon, needs to be greatly valued, and constantly monitored in regard to abuses and possible attempts to circumvent its spirit. Abuses may entail not disclosing important financial data pertaining to PSAs preenrollment participation on high level club teams, or even more alarmingly, not making an effort to investigate and document the true value of, e.g. an IPSAs preenrollment participation in a top-level league or event in their country and region of origin. That is, IPSAs may very well be within the coverage of Prop. 2009-22 by merely playing on the top professional competition in their country and continent, however they may also go beyond the threshold (see below) because they received above and beyond permissible expenses under Bylaw 12. Hence, consistent research by this Faculty group and collaboration between member institutions, conferences, Amateurism Certification and Eligibility Center staff, SAR and Enforcement staff, and hopefully international sport federations and regional sport governing bodies, will allow for a clearer picture in a currently murky plane for recruiting coaches, administrators, and most importantly PSAs and their families. Figures are going to be needed, and data-driven policy is best attained through research such as the one this Faculty-Industry collaborative introduced years ago as elaborated below. Such collaborative research and policy-drafting projects need to carry on the efforts for balanced and informed policy and continued expansion of opportunities at trying times for PSAs and families all over the globe, for the utility and benefit of all involved in a fair manner.

Coaches, you may now seek your “difference-makers”… and please behave.

Read more…

admin NCAA

Wonderful… more good food for writing and thinking purposes…

Alex and other colleagues from Portugal, please take this and run for our enjoyment (non-Sport&EU members, consider joining the listserve to receive responses and thoughtful academic discourse).

There goes the establishment clause in EC Treaty (somewhat), importantly the services clause, and the principle of the Country of Origin… In agreement re: balanced tone and limitations to justified restrictions, however it is an interesting blow for UK-based operators (here via Gibraltar)… Let’s monitor. Some links, pertinent sections of today’s ECJ judgment, a manuscript, and a comparative outline of interest below:

GamingLaw link here, contrast here.

The decision (C-42/07) and selected portions:

65…

First, Santa Casa’s long existence, spanning more than five centuries, is evidence of that body’s reliability. Second, the Portuguese Government points out that Santa Casa operates under its strict control. The legal framework for games of chance, Santa Casa’s statutes and government involvement in appointing the members of its administrative organs enable the State to exercise an effective power of supervision over Santa Casa. That system, based on legislation and Santa Casa’s statutes, provides the State with sufficient guarantees that the rules for ensuring fairness in the games of chance organised by Santa Casa will be observed.

66 In that regard, it is apparent from the national legal framework, set out in paragraphs 12 to 19 of the present judgment, that the organisation and functioning of Santa Casa are governed by considerations and requirements relating to the pursuit of objectives in the public interest. The Gaming Department of Santa Casa has been given the powers of an administrative authority to open, institute and prosecute proceedings involving offences of illegal operation of games of chance in relation to which Santa Casa has the exclusive rights.

67 In that connection, it must be acknowledged that the grant of exclusive rights to operate games of chance via the internet to a single operator, such as Santa Casa, which is subject to strict control by the public authorities, may, in circumstances such as those in the main proceedings, confine the operation of gambling within controlled channels and be regarded as appropriate for the purpose of protecting consumers against fraud on the part of operators.

69…

the mere fact that an operator such as Bwin lawfully offers services in that sector via the internet in another Member State, in which it is established and where it is in principle already subject to statutory conditions and controls on the part of the competent authorities in that State, cannot be regarded as amounting to a sufficient assurance that national consumers will be protected against the risks of fraud and crime, in the light of the difficulties liable to be encountered in such a context by the authorities of the Member State of establishment in assessing the professional qualities and integrity of operators.

The paper for interested parties here.

The comparative piece from SLA here.

More fun material for your reading pleasure and profound contemplation later this week.

Enjoy a fabulous Fall.

Tassos

admin Sport and EU

New and recent NCAA Policy Proposals

Pertinent LSDBi Links and resources below:

(Pending Proposal Draft for Competition with Professionals and Definition of Professional Team, namely the reconsideration of withholding conditions for prospects who competed pre-enrollment on teams that featured professionals, but did not themselves receive above and beyond permissible expenses per Bylaw 12, as well as treatment of post-first-opportunity-to-enroll amateurism matters, will be posted herein as soon as it becomes available. Related Amateurism Cabinet Reports from February and June 2009 meetings are important to review.)

DI Amateurism:

2008-79-1

AMATEURISM — INVOLVEMENT WITH PROFESSIONAL TEAMS — PROFESSIONAL BASKETBALL DRAFT — FOUR-YEAR COLLEGE STUDENT-ATHLETE — MEN’S BASKETBALL — DECLARATION TO RESUME INTERCOLLEGIATE PARTICIPATION BY THE END OF MAY 8

Status: Adopted – Final         Process Diagram

Intent: To amend Proposal No. 2008-79 to specify that, in men’s basketball, an enrolled student-athlete may enter a professional league’s draft one time during his collegiate career without jeopardizing eligibility in the sport, provided the student-athlete requests that his name be removed from the draft list and declares his intent to resume intercollegiate participation no later than the end of May 8 of the year in which the draft will occur; the student-athlete’s declaration of intent is submitted in writing to the institution’s director of athletics; and the student-athlete is not drafted.

Bylaws: Amend 12.2.4.2.1, as follows:

12.2.4.2.1 Exception — Professional Basketball Draft — Four-Year College Student-Athlete.

12.2.4.2.1.1 Men’s Basketball.  In men’s basketball, an enrolled student-athlete may enter a professional league’s draft one time during his collegiate career without jeopardizing eligibility in that sport, provided:

(a) The student-athlete requests that his name be removed from the draft list and declares his intent to resume intercollegiate participation by no later than the end of May 8 of the day prior to the first day of the spring National Letter of Intent signing period for the applicable year in which the draft will occur;

(b)  The student-athlete’s declaration of intent is submitted in writing to the institution’s director of athletics; and

(c) The student-athlete is not drafted.

12.2.4.2.1.2 Women’s Basketball.  In women’s basketball, an enrolled student-athlete may enter a professional league’s draft one time during his or her collegiate career without jeopardizing eligibility in that sport, provided the student-athlete is not drafted by any team in that league and the student-athlete declares his or her intention to resume intercollegiate participation within 30 days after the draft. The student-athlete’s declaration of intent shall be in writing to the institution’s director of athletics.

Source: Atlantic Coast Conference.

Effective Date: August 1, 2009

Proposal Category: Amendment-to-Amendment

Topical Area: Amateurism

Rationale: Concern has been expressed by some that the timeline provided in Proposal No. 2008-79 does not provide student-athletes with sufficient time to make informed decisions in the pursuit of a professional career. The NBA has recently changed its policies to permit its teams to conduct individual tryouts beginning in late April. In that regard, extending the deadline to May 8 is more appropriate and should provide a student-athlete sufficient time to gather information about his draft status. Further, it will also allow institutions time to make recruiting decisions and, if necessary, sign prospective student-athletes to financial aid agreements prior to the conclusion of the National Letter of Intent spring signing period.

Estimated Budget Impact: None.

Impact on Student-Athlete’s Time: None.

2008-79

AMATEURISM — INVOLVEMENT WITH PROFESSIONAL TEAMS — PROFESSIONAL BASKETBALL DRAFT — FOUR-YEAR COLLEGE STUDENT-ATHLETE — MEN’S BASKETBALL

Status: Adopted – Final         Process Diagram

Intent: In men’s basketball, to specify that an enrolled student-athlete may enter a professional league’s draft one time during his collegiate career without jeopardizing eligibility in the sport, provided the student-athlete requests that his name be removed from the draft list and declares his intent to resume intercollegiate participation by the end of the day prior to the first day of the spring National Letter of Intent signing period for the applicable year; the student-athlete’s declaration of intent is submitted in writing to the institution’s director of athletics; and the student-athlete is not drafted.

Bylaws: Amend 12.2.4.2.1, as follows:

12.2.4.2.1 Exception — Basketball — Four-Year College Student-Athlete.

12.2.4.2.1.1 Men’s Basketball. In men’s basketball, an enrolled student-athlete may enter a professional league’s draft one time during his collegiate career without jeopardizing eligibility in that sport, provided:

(a) The student-athlete requests that his name be removed from the draft list and declares his intent to resume intercollegiate participation by the end of the day prior to the first day of the spring National Letter of Intent signing period for the applicable year;

(b) The student-athlete’s declaration of intent is submitted in writing to the institution’s director of athletics; and

(c) The student-athlete is not drafted.

12.2.4.2.1.2 Women’s Basketball. In women’s basketball, An an enrolled student-athlete in basketball may enter a professional league’s draft one time during his or her collegiate career without jeopardizing eligibility in that sport, provided the student-athlete is not drafted by any team in that league and the student-athlete declares his or her intention to resume intercollegiate participation within 30 days after the draft. The student-athlete’s declaration of intent shall be in writing to the institution’s director of athletics.

Source: NCAA Division I Board of Directors

Effective Date: August 1, 2009

Proposal Category: Amendment

Topical Area: Amateurism

Rationale: Currently, men’s basketball student-athletes have 30 days after the NBA draft to indicate their intent to return to intercollegiate participation. As a result, such student-athletes have a three month period between April and July during which to make a decision. Such an extended time period is intrusive on academic performance during the spring and increases the potential for outside individuals to have a negative influence on the well-being of student-athletes. Establishing a shorter time frame by which student-athletes must withdraw from the draft and declare their intent to resume intercollegiate participation will encourage student-athletes to refocus on academics sooner and lessen the potential for violations of NCAA rules that will jeopardize their amateur status. In addition, the proposed time frame will assist coaches in roster planning. The proposed deadline will still provide sufficient time for student-athletes to declare their draft intentions. Professional teams devote significant resources to in-season scouting and film evaluation and sufficient information regarding draft projections is available before the proposed deadline to assist student-athletes with making an informed decision regarding an early departure to pursue a professional career.

Estimated Budget Impact: None.

Impact on Student-Athlete’s Time: None.

Position Statement(s):
Amateurism Cabinet The cabinet expressed concern that the timeline provided in the proposal would not provide student-athletes with sufficient time to make an informed decision about their futures. The cabinet discussed whether an early- to mid-May deadline ( e.g., May 8 ) would be more appropriate as it would provide student-athletes more time to gather information about their draft status and would still allow institutions time to sign prospective student-athletes to athletics tenders prior to the conclusion of the National Letter of Intent spring signing period.

admin NCAA

Fascinating.
Enjoy and keep monitoring.

http://europa.eu/rapid/pressReleasesAction.do?reference=CJE/09/65&format=HTML&aged=0&language=EN&guiLanguage=en

http://www.courthousenews.com/2009/07/17/EU_Court_Adviser_Backs_Soccer_Development_Fees.htm

http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=C-325/08

admin Sport and EU

The outcome of the remarkable story of Sweden’s wrestler who rejected his bronze medal in protest.
http://www.tas-cas.org/d2wfiles/document/3016/5048/0/20090216111733485.pdf

Here is the press release:

http://www.tas-cas.org/en/infogenerales.asp/4-3-3012-1092-4-1-1/5-0-1092-15-1-1/

The CAS dismisses the appeal filed by the national Olympic Committee of Sweden & Ara Abrahamian

Lausanne, 13 February 2009 –

The Court of Arbitration for Sport (CAS) has dismissed the appeal filed by the National Olympic Committee of Sweden (SOC) and the Swedish wrestler, Ara Abrahamian, against the International Olympic Committee (IOC), whose Executive Board ruled on 16 August 2008 to disqualify Ara Abrahamian from the men’s Greco-Roman wrestling, 84kg event, and to exclude him from the Games.

The SOC and Ara Abrahamian sought, inter alia, the return of the bronze medal won by the athlete which he took off and placed on the floor before walking away from the medal ceremony, which was still in progress.

The CAS confirmed that the behaviour of the athlete at the medal ceremony was in breach of the Olympic Charter and of the IOC Protocol Guide.  Such behaviour was not justified, even though the athlete had the personal conviction that several sporting decisions related to his semi-final at the Olympic Games were not correct.  The CAS concluded that the decision of the IOC Executive Board was not disproportionate in the circumstances.

Sport&EU, The Association for the Study of Sport and the European Union can be found at http://www.sportandeu.com

admin Sport and EU

(Full archive available upon request)

This interesting link comes from Greece.
(The factual background is intriguing, reminding us why many Greeks are working far from the Motherland!)
Therein, we read that there was a change in the Transportation Code, which apparently did away with ELPA’s influence (heretofore the sole proprietor for both state licensed races and the one who would issue the licenses… something like FIA of old in a way…) and mentioned that licensed motorsports’ races could be conducted after the acknowldgment and preapproval of a Greek motorsports federation (here it was focusing on motorcycle racing)… which the article ironically points out doesn’t exist at this point, and it further ironically points out that it would be too much to expect from the Greek state to recognize officially such a federation, which I gather was what MOTOE was aspiring to be…

So I reckon we’ll be awaiting the news from the administrative court of appeals…

–

As a sequel, please consider reviewing the elaborate inquiry of MOTOE by Sam Miettinen (2008). Policing the boundaries b/t regulation and commercial exploitation: Lessons from the MOTOE case. International Sports Law Journal. 3/4, 13-18.

Perhaps all this fascinating theory could practically lead to a very attractive result for many:
Creation of many separate regulatory bodies of review, ADR mechanisms for each sport or sport-related commercial practice, and several different means of testing the regulatory monopoly entrusted by states to a single entity, which in most cases heretofore also possesses commercial dominance (indeed, with at least a risk of abuse, which would be sufficient under MOTOE for a violation of Arts 82/86). E.g. an independent body would decide on appeal the decisions by ELPA to reject licensing applications to organize motor sports events, another (could it be the same, i.e. Supreme Sport Court/Arbitral Tribunal that some states provide for?) independent body could serve the same purpose for rejected licenses for sport betting offices issued by the state-run/supported monopoly regulator, etc. Suffice to say that the ECJ would again be the ultimate “decider” in cases e.g. of direct state aid to clubs and sport entities, thus distorting competition and prima facie violating EU Competition Law, with the defenses to be tested.

Thus, the call is open for colleagues to become more actively involved with state actors and sport governing bodies, in pursuit of instrumental appointments that would assure objective, transparent, and non-discriminatory appellate review that imposes obligations and restrictions on the traditional regulatory monopolies, some of whom may eventually consider the separation of regulatory/commercial activities.

Enjoy
Tassos

On Sun, Nov 23, 2008 at 6:30 PM, Tassos Kaburakis wrote:

I strongly encourage you to review the ECJ Grand Chamber decision in

C-49/07 Motosykletistiki Omospondia Ellados NPID (MOTOE) v Elliniko Dimosio, 1 July 2008

as well as the excellent as usual commentary by Stephen Weatherill in the Special Addendum to ISLJ 2008/3-4 (“Article 82 and sporting ‘conflict of interest’: the judgment in MOTOE”). Prof. Weatherill therein discusses EC Article 86 application as well, which is also dealt in Kaburakis, A. (2008) International Comparative Sport Law – The US and EU systems of sport governance: Commercialized v. socio-cultural model, Competition and Labor Law, International Sport Law Journal, 3-4, 108-127 (in pp 118. 126-127), and in Dedes, P. (2005). The special liquidation of the athletic joint-stock companies (for translation and a full bibliography from the ISLJ comparative article please advise). Links pertinent to the case and related ECJ cases follow below.

Quick points:

– The theory:

Arts 82 and 86 are violated where undertakings exercise special or exclusive rights and abuse dominant positions. Further, said Arts. are violated where such special or exclusive rights may create a situation in which undertakings are led to commit abuses, and where such rights give rise to a risk of an abuse of a dominant position.

– The application:

Even though as we recognise after Meca-Medina not all ISFs/NGBs restrictive policies are violating the EC Treaty per se, the burden is rather heavy, as confirmed and emphatically declared in the MOTOE case. And even though the separation of the regulatory authority from the commercial activity (see FIA example) is not mandated, it most certainly would minimise risks of abuse.

Objective, transparent, and non-discriminatory criteria would serve well, provided of course they would be so deemed after a court’s review of the restrictive practice (i.e. denial of competitor’s license to organise competing events, denial to operate sport betting offices, etc). Most importantly, after the member state’s exclusive rights allowed the (at the very least risk of) abuse by the state-licensed monopoly, some form of Due Process, a review, and means of challenging a negative decision need to be provided.

This obviously would be terrifically applied to many restrictive policies by a sport governing organisation. Some contemporary cases in re: sport betting operators challenging state monopolies are forthcoming (after Gambelli, Placanica, and Commission v Italian Republic) and links follow below.

Further many of the heretofore litigated, settled, or unsettled restrictive practices in sport would be dealt with interestingly under this lens and the truly heavy burden as verified in MOTOE.

Lastly, the mostly unexplored in scholarship application of Arts 86, 87 et seq. now command more scholars’ attention. What is examined in Kaburakis (2008, above) and elaborated in Dedes (2005, above) deals with the traditional, now, practice of state “salvation” of financially struggling clubs (motivated frequently by political interests and the long-established history of such clubs that would render non-assistance a political suicide, see samples from Greece, Spain, France, and unsuccessful ones in Italy), thus otherwise violating EU Competition policy, but passing muster due to arguable promotion of the general economic interest (86 par 2) or on socio-cultural grounds (87 par 2).

It would be outstanding if the ECJ would preemptively treat state aid to clubs as well, yet this would be beyond the scope of MOTOE. Nonetheless, MOTOE is the closest we’ve ever come to such application of competition distortion defenses under Art 86 et seq. And indeed, these prospective defenses are pretty strict and impose a heavier burden of proof than what ISFs and state entities have been used to in the past.

The one thought we may ponder is:

– Considering the contemporary financial problems in so many sectors of the economy, thus including sport, clubs (especially the ones which feature the administrators who unfortunately decided to once again overspend beyond their means) may assume the role of political “beggars” (if one wishes to attach such commentary in the cases of US and EU Auto manufacturers, airlines, etc.).

If so, considering MOTOE, and the recent history of ECJ Jurisprudence, we should be able to argue that more competition litigation should be forthcoming by adversely affected competitors, with substantial likelihood of success, in view of MOTOE and Meca-Medina.

Final word of optimism:

The Advocate General Juliane Kokott provides us with confirmation that a combination of EU and US legal education offers invaluable service to our field. For our students and colleagues reference, her bio available here:

The judgment:

A legal person whose activities consist not only in taking part in administrative decisions authorising the organisation of motorcycling events, but also in organising such events itself and in entering, in that connection, into sponsorship, advertising and insurance contracts, falls within the scope of Articles 82 EC and 86 EC. Those articles preclude a national rule which confers on a legal person, which organises motorcycling competitions and enters, in that connection, into sponsorship, advertising and insurance contracts, the power to give consent to applications for authorisation to organise such competitions, without that power being made subject to restrictions, obligations and review.

Some links of interest:

A pending case we need to monitor is

C-258/08 Ladbrokes Betting & Gaming Ltd and Ladbrokes International Ltd v Stichting de Nationale Sporttotalisator

and suggested ECJ research links here, here, and here.

Sincere wishes

Tassos

admin Sport and EU

First off, thanks to Geoff for initiating this matter for discussion.

Naturally, many of us here would have a blast taking up a case for FIFPro and any affected players in view of EC Treaty Arts 81, 82 et seq and in essence challenging the collusion such an agreement would create, but I don’t feel we even have to entertain such a discussion…

Quick points merely herein:
– Under “Ein Kommen und Gehen” (hat tip to Manuel Martín Domínguez for the link below), Hoeneß argues that he fears a developing scenario that would assimilate American football and basketball leagues and questions “where are the 49ers and the Bulls”… He argues that in this way (Webster decision, freedom to breach a contract and only owe the remaining value of the contract) you can’t build traditions and develop teams…
As a former coach I understand what he’s saying. However, let’s think about this for a moment…
On this side of the Atlantic, our US friends have developed a system where contracts are mostly enforced by the sheer magnitude of the liquidated damages clauses, that some courts would even go as far as render punitive and even unenforceable. Some of our colleagues here, especially after some high-profile coaches’ breaches this year, argue that there should even be a specific performance clause/enforcement avenue, and also somewhere in this maelstrom there is a fascinating discussion on whether a bonus clause for completing the contract encourages coaches to remain with their team… Indeed, such an American concept to be awarded for doing what you are supposed to!
Hoeneß says that it is not a healthy situation that corrupts football and Horst Held of Stuttgart argued that the CAS Panel that decided Webster “had no idea…”
It is also interesting in the article to point out that it is argued the new broad European Club Association (ECA) is not in the position of power that the G14 was as the instrument for enforcing contracts etc… People seem to not truly trust the ECA… Heterogeneity issues, conflicts within? I’d love to hear more if anyone has info on the current state of the ECA, in view of the EC’s social dialogue efforts…

– My Q is, are liquidated damages under — in this case — German Law and others please chime in from your jurisdiction (a nice comparative piece I believe from us to that end would be forthcoming) illegal? If Labor Law/Employment policy provisions allow for a “US-type” buyout clause, then is there a problem negotiating that with the player’s representatives? It is just part of the business, correct?
(It follows, do you see the US bonus clause for completing the contract working…?)

– Otherwise, Hoeneß still remains practical mentioning that such a Gentleman’s agreement would be “more than questionable” considering the “Russian oligarchs (why do people criticize Russian money anyway, wouldn’t they go for it?) and other big-time investors”…

– The problem as we see it nowadays occurs in such recent cases as many in Europe and specifically in Greece where I have the examples from, where a team (Aris Thessaloniki) that wishes (coming very close this past season) to break the monopoly of the big-time investors and traditional (Athens) football regimes (I wonder if Hoeneß would think that would make good football tradition…) is in a tough situation: A very talented player (Papadopoulos) and the best coach in its history (Bajevic) are being courted by the haves of Athens… Bajevic seemingly turns Panathinaikos down, BUT:
the talented player’s contract is about to expire this upcoming season… Does the team lose him for nothing, sell for as much as they can get, or talk him into renewing for a reasonable price? The latter was not an option, as repeated attempts were turned down by the player’s representative, since logically they felt they would get more in the free market. But what if the team would then hurt the player’s stock value (as the CAS Panel in Webster hypothesized… should they be liable for the negative value?) Aris administrators allegedly told Bajevic he shouldn’t count on the player for the upcoming season… Then coach resigns, and the player is eventually sold to Olympiakos for 2.5 million Euros, whereas the administration had posed they wouldn’t give in for less than 4 mil… But do they risk losing him for nothing, as many examples of failed negotiations show…? According to Webster obviously, Avraam Papadopoulos could breach (unsure if he was outside the Protected Period) and merely owe the remaining value of the (minute considering his present value) contract…
Thus: buyout clauses?
bonus clauses for completing the contract? (…I cringe still, though I see the American point of practicality)
tapping up sanctions and practicality of enforcement?
(somewhat laughing) specific performance enforcement…:)

In strict legal sense, I believe the Webster decision was correctly decided, and the two Greek cents in our recent Newsletter point out some truly captivating sections of the decision, making for some really good theorizing…

Otherwise, another tough example of fragmentation of EU Law and Policy, with conflicting interests and rationale…

Would love to hear your thoughts

Geoff and Manuel thanks again for this…

Best

Tassos

On Wed, Jul 9, 2008 at 12:30 PM, M. J. Martín Domínguez wrote:
I think this is the publication you are looking for. It is German and I have not found any reference in other languages.

http://www.welt.de/sport/article1635515/Hoeness_und_die_Angst_vor_russischen_Oligarchen.html

Rgds,

Manuel

—–Mensaje original—–
De: Sport and the European Union En nombre de Pearson, Geoff
Enviado el: miércoles, 09 de julio de 2008 17:20
Para:
Asunto: Webster Decision – Gentleman’s Agreement?

A quick query regarding the Webster decision.

I have been informed that in a recent German football magazine, Bayern Munich manager Uli Hoeness stated that there was a Gentleman’s Agreement between clubs in the ‘Big 4′ European Leagues not to utilise the Webster Decision in order to reduce transfer fees for players who are out of their Protected Period. However, I’ve not seen the interview myself (and I can’t read German in any case!) and I have not found any reference to this elsewhere.

Does anyone know any more about this alleged agreement?

Thanks in advance.

Geoff.

—————————
Dr Geoff Pearson
Director of Studies (MBA Football Industries) Lecturer in Law Management School University of Liverpool Liverpool L69 7ZH
www.liv.ac.uk/footballindustry
http://pcwww.liv.ac.uk/~pearsong/GeoffPearson.htm

Sport&EU, The Association for the Study of Sport and the European Union can be found at http://www.sportandeu.com

admin Sport and EU

As I was compiling links and sources for an article, here is the section (below) referring to our conversations this week and the pertinent references from EurActiv, EC, etc… Importantly, heretofore the EC position on the 6+5 rule is what everyone would expect, considering Employment/Labor Law and ECJ Jurisprudence. However, just for fun, here is an outrageous conspiracy theory:
– Could UEFA have poisoned Blatter’s (and the necessary advisors’) already deteriorating mind(s) and created this 6+5 travesty so as to deflect some of the controversy around the home-grown rule…? The results of the EC “home-grown” study are multiply-interpreted and one could always assume a variety of reasons for the numbers to fluctuate through 2012 whilst the implementation of home-grown rules will be “closely monitored”… The immediate result as I observe it this week, nevertheless:
– Apparently (also please retrieve the following links for more) the EC and political positions toward the “home-grown” rule may arguably be becoming even more favorable, considering the offered alternatives (pathetic offerings such as the 6+5…)

Enjoy your summer

Tassos
–
here it is important to note that the Commission, via its Employment Commissioner Vladimir Špidla on May 28, 2008 (http://www.euractiv.com/en/sports/fifa-shown-eu-red-card-player-quotas/article-172786), chastised a directly discriminatory policy on the grounds of nationality proposed by FIFA to its member federations, the “6+5″ rule, according to which at least six players on the field at the beginning of each match would have to come from the country of the club they are playing for. On the other hand, the present studies the Commission has conducted (http://ec.europa.eu/sport/whatsup/ce_complementary_study%20_report_par_i_en.pdf) in regard to the “home-grown” rule concluded that the UEFA rule does not lead to direct discrimination on the basis of nationality, but that a risk of indirect discrimination on the basis of nationality exists as access to clubs’ training centers is easier for the young national players rather than players from the other member states. According to the above release, Špidla, MEP Belet (EPP-ED), and Commissioner Figel all agreed that, although not perfect, the “home-grown” rule appears reasonable and modest, encouraging the investment of clubs in (local) youth development, thus deserving the support of the Commission, Parliament, and broader European political constituencies. Nonetheless, the Commission reportedly will ”closely monitor” the implementation of the UEFA rule and undertake “a further analysis of its consequences by 2012″ in order to assess its implications in terms of the principle of free movement of workers (http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/807&format=HTML&aged=0&language=EN&guiLanguage=en)
Sport&EU, The Association for the Study of Sport and the European Union can be found at http://www.sportandeu.com

admin Sport and EU