Dr. Anastasios Kaburakis

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

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

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

Update on the plenary vote of the European Parliament on the previously discussed report on the Commission’s White Paper on Sport:

518 in favour, 49 against, and 9 abstentions according to today’s release…

Intriguing… Sheepishly considered and problematic, but you can make your own determinations, and for further commentary refer to the Sport and EU Newsletter (pp 3-4)…

Next steps: debate and vote in the European Council, where hopefully the particular report’s portions and issues of concern (seemingly contradicting EU Law, ECJ Jurisprudence, and EC Policy) will be carefully deliberated after more reflection considering EU Law application in sport and; European Commission action items including a November forum projected to feature representative dialogue b/t all stakeholders.

At least the budget items are continuously promoted! Thus, we should engage in collaborative grant-landing endeavours in the immediate future.

Here are the links for your perusal:

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2008-0198+0+DOC+XML+V0//EN&language=EN

http://www.euractiv.com/en/sports/parliament-wants-eu-sport-budget-2009/article-172246

http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&mode=XML&reference=A6-2008-0149&language=EN

http://www.europarl.europa.eu/news/expert/infopress_page/041-28228-128-05-19-906-20080430IPR28013-07-05-2008-2008-true/default_en.htm

http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/730&format=HTML&aged=0&language=EN&guiLanguage=en

http://www.alde.eu/index.php?id=42&no_cache=1&tx_ttnews[tt_news]=9508

http://www.epp-ed.eu/Press/showpr.asp?PRControlDocTypeID=1&PRControlID=7374&PRContentID=12856&PRContentLG=en

http://www.epp-ed.eu/press/showPR.asp?PRControlDocTypeID=1&PRControlID=7387&PRContentID=12883&PRContentLg=en

http://www.socialistgroup.eu/gpes/newsdetail.do?lg=en&id=82582&href=home

Enjoy your summer

Tassos

—

On Thu, Apr 3, 2008 at 12:34 PM, Tassos Kaburakis wrote:
Colleagues,

Hope this finds you well.

The EP’s Committee on Culture and Education adopted a report by Greek MEP Manolis Mavrommatis on the White Paper, with guidelines, directives, and somewhat strong recommendations for the Commission.

[The Mavromatis report was adopted in committee with 31 votes in favour, 1 against and 1 abstention Plenary vote: April II or May I]

His comment:

“The official recognition of sport in the new Reform Treaty is a very big step towards a European policy in the field of sport. Thus, I am very happy that the Committee on Culture and Education has adopted my report on the White Paper, which already has basic guidelines for this policy, underlining the need to continue financing for professional and amateur sports, the recognition of collective selling of media rights and of course a more efficient fight against doping”.

There definitely are some interesting items and important deviations from ECJ Jurisprudence (and some cases that might be forthcoming, as we have commented herein multiply re: home-grown rules etc…)

I de-limit this to pertinent matters in view of our recent scholarship on gambling and sport betting cases such as Gambelli and Placanica. Respective items from the report are found below.

Our US colleagues in Gaming Law may review for good measure and brainstorming.

Needless to observe there is a host of outstanding research herein.

I include some links and documents for reference. In the process of the Reform Treaty, we shall continue dissemination of such timely resources and pertinent research material.

Otherwise, fully enjoy a fabulous Spring!

Tassos

http://www.europarl.europa.eu/news/expert/infopress_page/037-25315-091-03-14-906-20080331IPR25314-31-03-2008-2008-false/default_en.htm

http://www.euractiv.com/en/sports/meps-adopt-report-future-eu-sport-policy/article-171228

http://www.epp-ed.eu/Press/showpr.asp?PRControlDocTypeID=1&PRControlID=7218&PRContentID=12602&PRContentLG=en

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+COMPARL+PE-400.553+01+DOC+PDF+V0//EN&language=EN

http://www.europarl.europa.eu/activities/committees/amendmentsCom.do?language=EN&body=CULT#

http://www.europarl.europa.eu/activities/committees/draftReportsCom.do?language=EN&body=CULT

http://www.europarl.europa.eu/meetdocs/2004_2009/documents/pa/707/707887/707887en.pdf

<Amend>Amendment by <Members>Guy Bono</Members>

Amendment <NumAm>205</NumAm>

<Article>Paragraph 12</Article>

12.       Considers that the gambling, sports betting and lotteries sector should operate within the framework of a licensing system which would guarantee continued financing for professional and amateur sport by means of repayment mechanisms, the integrity of sporting events (by monitoring betting operations and the financial flows of sports betting providers and by warning about conflicts of interest) and the protection of their organisers’ exploitation rights, and calls for gambling addiction to be tackled;

Or. <Original>{FR}fr</Original>

</Amend>

<Amend>Amendment by <Members>Gerardo Galeote</Members>

Amendment <NumAm>206</NumAm>

<Article>Paragraph 12</Article>

12.       Takes the view that state-run gambling or lottery services should operate alongside licensed gambling services in a regulated market in order to provide the utmost support to amateur and professional sports;

Or. <Original>{EN}en</Original>

</Amend>

<Amend>Amendment by <Members>Christopher Heaton-Harris</Members>

Amendment <NumAm>207</NumAm>

<Article>Paragraph 12</Article>

12.       Takes the view that state-run gambling or lottery services should operate alongside licensed gambling services in a regulated market in order to provide the utmost support to amateur and professional sports;

Or. <Original>{EN}en</Original>

</Amend>

<Amend>Amendment by <Members>Christa Prets</Members>

Amendment <NumAm>208</NumAm>

<Article>Paragraph 12</Article>

12.       Voices its concern at the possible deregulation of the market in gambling and lotteries, since state-run or state-licensed gambling or lottery services will be harmed by competition and will restrict their support and social mission mainly to amateur sport;

<Amend>Amendment by <Members>Ivo Belet, Guy Bono, Emine Bozkurt, Manolis Mavrommatis, Jacek Protasiewicz</Members>

Amendment <NumAm>211</NumAm>

<Article>Paragraph 12 a (new)</Article>

12a. Asks the Commission to come forward with a proposal ensuring a clean sports betting sector in the European Union, preventing misuse and corruption and respecting the sport event organisers’ rights;

Or. <Original>{EN}en</Original>

</Amend>

<Amend>Amendment by <Members>Cornelis Visser</Members>

Amendment <NumAm>212</NumAm>

<Article>Paragraph 12 a (new)</Article>

12a. Considers that Member States’ revenue from games of chance should be directly proportionate to their expenditure on sport, and that the revenue from games of chance should remain in the Member States;

<Amend>Amendment by <Members>Christa Prets</Members>

Amendment <NumAm>282</NumAm>

<Article>Paragraph 21 c (new)</Article>

21c. Calls on the Commission and the Member States to adopt regulatory measures which ensure that sport is protected from any improper influence associated with betting, to set up a European or national system to monitor betting operations and money streams of sport betting providers and to prohibit the ownership or commercial involvement (e.g. sponsorship) of sports clubs by betting companies as well as links of betting companies with a sportsperson, unless the betting companies exclude the club or sportsperson from their sports betting offer;

Or. <Original>{EN}en</Original>

</Amend>

This is the second case decided by the FAT, the new international basketball federation ADR mechanism.

Some of you may remember Khalid El-Amin from his UConn championship run in 1999.

Somewhat entertaining…
…especially Claimants first request (reckon it couldn’t hurt)…
…and Respondent’s counterclaim re: losing another player represented by the same agent…
Reminder that regardless of the amount of dispute the non-reimbursable filing fee is 3,000 Euros. This time the respondents actually paid their share on advance costs (set at $5,000 for each party…) and participated in the arbitration process.
The arbitrator of this case worked for 30.6 hours at an hourly rate of 300 Euros. The FAT’s President’s fees were €820 (rounding up the cost to a nice 10,000 Euros). Compare previous case (FAT Pres’ fee at €500)

to compare fees w/ AAA:
http://www.adr.org/sp.asp?id=22440#Fees

On a side note, I take away that living with one’s family — and in a healthier environment — is valued at appx. $300,000… One more thing to ponder when deciding on life transitions:)

Regards from St. Louis

Tassos

–

First off wishes to all for a healthy and happy 2008.

Very quickly:

http://www.fiba.com/pages/eng/fc/expe/fat/p/newsid/30142/deci.html

The latest development in what started as a promising institution, the FAT, the arbitration body for International Basketball.
Some of you have prior correspondence. If you desire more please advise.

In a nutshell:
Club did not fulfill its obligations.
Player and agent pursued arbitration via FAT, the new body that perceivably will be the receiving end of various similar cases in the future as FIBA contracts will/should have the pertinent clause.
As you will observe the most frustrating part initially was that to ensure fees would not go uncollected FIBA obliges reception of both parties’ fees to continue hearing the case (!) so player/agent proceeded with paying the respondent’s fees. Obviously the club never appeared and had absolutely no contribution to the review of the case. As one would easily foresee, the club was eventually hit with the award, and as one with experience of Greek pro sport club matters would also foresee, they proceeded to again do nothing about it to avoid further penalties and sanctions by the ISF and NGB…
The final twist that would draw the ire of even the most calm and balanced of observers:
The Greek Basketball Federation, member of FIBA, thus the means by which the sanctions for the club would be enforced (i.e. no new player licenses, though I did not hear anything about the previously set 100,000 Euros fine for not conforming to the FAT award, rendering the team ineligible for FIBA competitions, etc…) steps in and saves the day… They seemingly pick up the tab and FIBA is happy.
In terms of practicality and political motivation, this makes perfect sense.
Final thought, as a Greek taxpayer (the federation is directly funded by the state) and having volunteered in the past with national teams and various federation events and projects, I am fairly disappointed, if not disgusted. As a responsible citizen and professional, I find this at least condoning irresponsible fiscal management, and a somewhat preposterous way to commence an institution of such importance globally. As a legal scholar, I invite contributions:)

Best regards, further links here and here.

Tassos

In continuation of the WTO Antigua v US dispute:
http://www.iht.com/articles/2007/12/21/business/wto.php

Have a great holiday break

Tassos

On Dec 17, 2007 3:10 PM, Tassos Kaburakis wrote:
http://www.reuters.com/article/businessNews/idUSBRS00025920071217?feedType=RSS&feedName=businessNews&rpc=23&sp=true
http://news.zdnet.com/2100-9588_22-6223065.html
http://news.yahoo.com/s/nm/20071217/wr_nm/eu_usa_gambling_dc
http://www.businessweek.com/ap/financialnews/D8TJ5BTO0.htm

interesting…
There’s obviously a lot of lobbying and negotiation going on there among the decision-makers, the industry professionals, etc but at least from where we stand as legal & policy scholars and somewhat objective thinkers, could one see the rationale behind the EU side and most importantly the justification of the US side discriminating bluntly against such providers? I believe the latter was confirmed a couple of years ago in the WTO decision siding for Antigua v the US… Oh well… signs of time I guess, and “westward concessions” of our dear Commission…

Not much time to elaborate but we perhaps should open this up re: philosophical approaches b/t the US and EU, impact on contemporary policy and legal practice, and most notably, the financial implications for each sector that would be sacrificed in each turn… Lobbying goes a long way, but it wouldn’t be far-fetched to argue that the more conservative positions in the US spilled over to the EU in this regard, with global financial ramifications for an industry that well, only rarely had been legitimized. Here’s to the Gambelli and Placanica decisions of the ECJ and more political lobbying in the future… Plus things on our US side of the pond are changing drastically, but you knew that!

There’s some comparative work b/t US and EU on sports betting, so if anyone is further interested, please advise…

Warm regards from a frozen St. Louis. Enjoy time with your loved ones this holiday season, best wishes for health, balance, and spiritual clarity

Tassos

Thanks Alex, this was one of the first documents that I thought of… If anyone else is further interested in relevant contributions and a collection of material written on the subject, as well as looking at exemption arguments from both sides of the pond, please advise.
A twist on the matter is this, from the basketball side:
Unlike G-14 and/v. UEFA/FIFA, ULEB (organizing the Euroleague and ULEB Cup) after a period of breaking away (2000-2004) had joined forces with FIBA Europe (the European arm of the international basketball federation, FIBA). Recently (Spring and summer 2007) we almost came close to another fallout, which could be elaborated if you are interested (essentially dealing with controls and restraints FIBA Europe imposed on ULEB and the latter agreed upon). This formal position, though, may signify an immediate “break-up” as FIBA Europe’s president, George Vassilakopoulos — V. for short – is one of the most avid supporters of an exemption and ISFs allowed to roam as deemed appropriate. There is sure to be a formal reaction triggered by this letter.

It is pretty offensive and remarkable that we still refer to ways allowing… what? Otherwise unlawful restraints… for what purpose? The objectives pursued (competitive balance, grassroots development, athletes’ welfare) as has been pretty extensively documented by our colleagues’ scholarship have not been adequately and sufficiently served by any means through which ISFs have tried to perpetuate an otherwise outdated model. What would e.g. the “homegrown rule” (indirectly violating Art. 39 as Roberto Branco nicely posed recently) and certain frustrating state NGBs’ nationality quotas (still in effect!) accomplish that would have to necessarily involve such restraints?
We shouldn’t even have to go through an analysis of other less restrictive means, which would accomplish the same objectives. The present restraints (either elegantly or bluntly posed as the two above examples) are plain wrong and in violation of EU Law.
Even though some ECJ Justices and, importantly, a significant EC “socio-cultural” caucus have accepted that such measures would have a legitimate foundation and perhaps would pass the “muster” (of both if not only of the EC), arguably there should not in any way be any discussion about an exemption as that would allow uncontrolled violations of athletes’ rights, and clubs’ economic viability/competitive equity…

Anyway we cut it, let’s just think of what that would mean practically (allowing ISFs freedom to roam, legislate, and govern their affairs):
– Inequity in competition, absent any further restraints imposed by ISFs (at the same time, the breakaway ULEB, as would be the case of the G-14, would not accomplish any competitive balance and equity goals w/o caps, redistribution of TV revenue, etc). At this point, although the “solidarity payments” in both football and basketball (I have no info on handball, please advise) appear somewhat OK for grassroots investment (note that in basketball, though, there are no objective criteria when two member Associations disagree on the transfer fund, deferring to… some ad-hoc FIBA centralized board of three including the Gen Sec., appalling!) however in re: transfer systems w/ training and development contributions, there are outright age discriminatory criteria and a host of other restrictive measures that just do not jibe with EU Law provisions. We could go around and around discussing how they could be held reasonable under, say a sui generis Rule of Reason test, but when you have outright age barriers, nationality criteria, no compensation/insurance in return for players services for your (national teams) competitions, etc (regardless of how much we all love our countries, these guys and gals risk their livelihoods each time, and clubs their important investment!) how can one support that they could be found EU Law-abiding?
– Creation of a segmented/segregated world for EU sport. Local interests would promote local talent, no chance to promote equity in competition when looking at the broader picture of a Community adaptation and Common Market development with implementation of the bedrock principles of the freedoms posed by the Treaty… And if the argument is, well if you want a puree of EU sport, including the influx of “Cotonou (ACP) players” then be ready to lose any local support and national identity/support for your teams, I’d be willing to take that, if it promotes freedom of movement and competition under equitable (not equal, rather merit-based) terms. If you are good, you should be allowed to move and play anywhere. I bet V. and Blatter would not like to see nationalistic pride and hooliganism perpetuate anyway, correct?
– More importantly, referring to our colleagues’ works, no participation in decision-making by the ones directly affected by these restraints! Where are we going without clubs’ contribution and athletes’ participation? (no CBA yet, where is FIFPro? In basketball we do have a new venture, http://www.ubeplayers.com/ which hopefully will have some say, and some advocates of these players’ unions were recently chastised… because they demanded insurance for the lower division club athletes by their NGBs! Shocking!)
– State governments and paraphrasing my dear compatriot V. “professional sport federation administrators” (as he is always complaining about these “paratroopers”, financial investors and professional business managers that have befallen on the noble, unblemished, pure, and true world of sport) doing as they please, legislating on whatever they find reasonable at the time, centralizing procedures, arguably preserving the old pyramid, but I’d venture the conjecture that they would have the same motives with the ones they complain about, revenue for them, the constituents that support them, and the preservation of decision-making power. If anyone is interested, a look at how the most recent FIBA Europe elections took place would be pretty indicative, if not insulting to one’s intelligence!

Obviously, these lines could continue on…

Having said all that, the clubs administrators need to find ways to preemptively address any policy developments. And if that were the case, any breakaway leagues need to have a careful governance structure, attending to those time-transcending values embedded in all sport-loving Europeans, the balance, equity, and welfare principles posed above.
But we won’t have to go there… Europeans have a powerful intellect, and incredible resourcefulness. We’ll be OK. It’s just the relics we’ve got to clean up! I can’t believe we won’t!

Be well

Tassos

On 10/9/07, Alexandre M. Mestre wrote:

Confidencial e protegido por sigilo profissional l Confidential and protected by attorney privilege

Dear all,

Please find herewith a modest contribution for the debate. It is an article published in 2005, but I think it is still up to date due to the fact that as far as sport is concerned the Draft Reform Treaty has almost the same text.

Alexandre Miguel Mestre
PLMJ – A. M. Pereira, Sáragga Leal
Oliveira Martins, Júdice e Associados

—–Original Message—–
From: Sport and the European Union On Behalf Of Jean-Christian Drolet
Sent: terça-feira, 9 de Outubro de 2007 15:14
Subject: Re: G-14 and others Vs UEFA

Thanks for the link,

Nice to see that some of the sport people are still thinking with their head.

By the way, this sporting exception could be justified if someone actually came up with an argurment saying why running a football club is that different from running a law firm. All the classic arguments (need for opponent, rules of the game, etc…) being excluded from EU Law by the Deliège deicsion I am still waiting for someone to come up with a convincing plea on that…

Jean-Christian Drolet

——– Original-Nachricht ——–

> Datum: Tue, 9 Oct 2007 11:30:30 +0200

> Von: “Alfonso Rincón”

> Betreff: G-14 and others Vs UEFA

> http://www.g14.com/news/g14press.html

>

> Clubs Send Joint Letter to EU Governments Regarding Reform Treaty

>

> G-14, Euroleague Basketball and Group Club Handball, which together

> represent leading European clubs in the sports of football,

> basketball and handball, have outlined their shared views regarding the

> nature of the relationship between sport and EU law

> in a joint letter to European heads of government regarding EU Reform

> Treaty.

>

>

>

> Alfonso Rincón García Loygorri

> Instituto Universitario de Estudios Europeos

> Universidad CEU San Pablo

Paul and Jack’s discussion sure has been memorable, I never thought that post would lead to such interaction. Attending to the matter of the post, indeed, my understanding and interpretation is this, and FIFA appears for some time now not assuming FIBA’s more intense stance in re: participation on national teams:

- FIFA does oblige the clubs to release the players and this is the whole criticism from the G14 and the supporters of the Oulmers case, especially considering his case, of an injury sustained during national team competition, resulting in the player being unavailable for club play due to the incapacitating injury… It does appear, and the colleagues who are closer to this can advise us, that the dialogue b/t Platini, UEFA, the G14 and other clubs and players representatives (what does FIFPro do during this anyway, are they included truly?), may lead to more safety nets in re: insurance, some form of club representation in the process, essentially treating the Oulmers case before the courts do, unless they burnt the bridges they started building again…

- FIBA on the other hand had that pretty amazing notion that we read in the original post:
H3.6.3 Players’ availability to play for a national team
H.3.6.3.1 General principles (see also H1.12).
a) Any club which signs a contract with a player is obliged to release
that player when he is summoned by a national member federation
to play for its national team in any age category in a main official
competition of FIBA.
b) Any player registered with a club is obliged to reply in the
affirmative when summoned to play for his national team.

Again, any club player IS OBLIGED TO REPLY in the affirmative…

At the same time, basketball players too have been known to negotiate and declare their unavailability for national team play, though sometimes in the past there were direct consequences for national league club play, when it was still run by the same federation, before we moved to the new professional leagues’ model in some sports.

This too has a story behind it that may not be within the lines of this correspondence…
With the limited experience working through FIBA and our Greek basketball federation in the past, our two Greek cents here would be that after a change in the leadership of FIBA, which will not take place before 2010, considering the recent elections (mainly referring to FIBA-Europe here) this too will be revisited, if not before that time… To clarify, I do believe that the present leadership has offered a few good things, but is portraying an outdated reality in conducting “sport business” affairs… However, the “Eastward expansion” which led to getting the crucial voting majority (appeared landslide after Marculionis’ withdrawal under somewhat interesting conditions) and essentially led to a renewed term may not be beneficial in the immediate (till 2010) future in re: organizing the world of basketball under contemporary terms, conditions, and essentially Law mandates…

Having observed the recent developments b/t FIBA and ULEB (the European professional leagues’ association, featuring arguably the best teams in Europe, what the G14 would be for basketball) once again breaking ties and going their own way, one has to be sad that we still can’t reach common ground and find at last a way to bridge the socio-cultural model and all the practices carried over from the past that will be/are/have been found in violation of EU law with what contemporary reality calls for.

Hopefully we can find some common ground, something that FIBA and ULEB haven’t reached on two occasions, leading to the breakup of European basketball, and UEFA and the G14 hopefully will learn from and won’t have to wait till Oulmers or any irreparable damage to relations…

On the original post, this citizenship v residence issue does appear along the lines of the ‘classicists’ and proponents of preserving the socio-cultural model and pyramid structure with the concurrent self-regulation of NGOs/ISFs w/o EC or ECJ intervention in our case…
If this is the case and such regulatory evolution abides by what courts have commented falling within the “specific nature” of sport then there probably is no need to worry about any future legal proceedings, or would anyone forecast otherwise? Again, this is national teams’ international competition we are referring to, and not the private entities’ organization of club leagues, that have immediate labor law/services/establishment consequences…

Best wishes

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

—

Hope the summer is treating you well.
Immigration Law lovers will find this interesting, and the US crew may think of this next time we hear a debate on immigration reform and permanent residence v citizenship pontifications…
Quick post for reflection on a breaking development from FIFA; sadly after some limited research no official doc/pdf/media release on the matter was available yet, however various sources report the communication from FIFA via the Executive Committee letter to National Federations on the matter (if anyone retrieves the official file from FIFA/UEFA in upcoming posts, please fwd):

http://edition.cnn.com/2007/SPORT/football/06/21/fifa.eligibility.reut/index.html

http://uk.reuters.com/article/footballNews/idUKB83087820070621?feedType=RSS

http://www.haaretz.com/hasen/pages/ShArt.jhtml?itemNo=873817&contrassID=2&subContrassID=6

possibly an update soon to be found under:

http://www.fifa.com/aboutfifa/documentlibrary/legalmatters.html

Essentially we are witnessing a shift of the traditional residency burden in re: national team competitions and players’ eligibility to a citizenship standard. Thinking of the past practices many ISFs selected in order to bolster national teams with resident aliens, this really changes significant administrative policies for many constituents. It appears e.g. that national bodies will have to actually pursue going the full route of securing citizenship for the players involved, which in certain cases might not be feasible. And as the articles observe, in the case residents of one country migrate to another to play for a different club, they will be ineligible for the national team of the former country, and they will in all likelihood (according to the several established criteria of the various governing bodies, certainly for FIFA and FIBA) be ineligible for the latter, due their past participation on a different national team. Hence, immigration lawyers of the various countries involved, enjoy preparing for the administrative process FIFA provides us with in the immediate future.

For an interesting case somewhat epitomizing the issues involved and truly showing national legislatures the way:
http://permanent.access.gpo.gov/lps70082/Aug%202006%20GLM%20no%203/2006_glm_08.pdf
(I attach the section related to KT Douglas and the Lithuanian Act of Parliament, I loved this one, bold italics added)
‘On July 17, 2006, the Parliament of Lithuania amended the Citizenship Law, allowing the President of Lithuania to grant Lithuanian citizenship by way of derogation in cases affecting the public interest or in order to promote Lithuania in the international arena. The amendment substantially expands the possibilities for granting Lithuanian citizenship by this means; under the previous law, it could be given only “to persons who made a significant contribution to strengthening the Lithuanian state and to boosting Lithuania’s power and its image in the international community.”
The amendment allowed the President to reconsider a previously declined request to grant Lithuanian citizenship to American basketball player Kathryn Douglas, the leader of the Vilnius basketball club Teo. Acquisition of Lithuanian citizenship will make her eligible to represent Lithuania at the World Women’s Basketball Championship in Brazil in August. Without Lithuanian citizenship, the basketball player cannot play for the Lithuanian national team. The amendment was initiated by a group of famous Lithuanian athletes, politicians, scientists, and actors, who urged the legislature to amend the law in behalf of Douglas. (President Reconsidered US Basketball Player’s Application for Lithuanian Citizenship, BNS [Baltic News Service], July 19, 2006.) (Peter Roudik)’
For the record Katie Douglas never played for Lithuania in the World Championships, instead she joined the US national team in exhibition games overseas in the Spring of 2007… (a twist being that, married to a Greek citizen, she would be able to pursue yet another avenue for national team participation).

Some thoughts on FIFA’s new regulation already posted on:
http://www.bigsoccer.com/forum/showthread.php?p=11915525
hopefully more may be discussed via our colleagues under:
http://www.e-comlaw.com/sportslawblog/default.asp
some related stories re: nationality/citizenship…
http://www.uefa.com/footballeurope/news/kind=2/newsid=508417.html
http://www.fifa.com/mm/document/affederation/administration/ps%5f901%5fen%5f90.pdf
and a useful read, being the ESLJ Boyes 2005 article:
http://www2.warwick.ac.uk/fac/soc/law/elj/eslj/issues/volume3/number1/boyes/#a75

In light of the upcoming implementation of the “home-grown rule” for club competitions [no mention of nationality therein, simply a reference to 'locally trained' players, see http://www.uefa.com/newsfiles/277167.pdf ; reasons are legally obvious -- distinguishing here b/t sport laborers on clubs and the national teams' participants, who select to answer the call of the federation... essentially w/o having another choice, (or do they? some now just negotiate with the federations and/or claim injuries in view of national teams' comps.) see the Oulmers case and discuss whether you feel the whole structure of international comps. featuring national teams may change, by federations not being able in the future to oblige clubs to release players for their national teams] and this new development re: national teams participation and eligibility of players, it appears that FIFA is showing the way to other ISFs… Somewhat fascinating to observe whether FIBA or others will follow suit… Opinions?

Needless to say that Jurisprudence may never decide such a matter referring to national teams’ competitions, considering the self-regulation of ISFs… or…? Could we hypothesize i.e. re: Constitutional and Labor Law, Equal Protection/Discrimination, athletes vs other laborers not enjoying the same privileges toward obtaining citizenship…? Other extensions you see? Is there any research in the works, especially considering the always fascinating distinction b/t club and national teams competitions…?
On the latter thoughts, the comments from our US colleagues in re: particular “documented disinclination samples” for participation on the US national teams (our overseas colleagues would be familiar with NBA players expressing their unwillingness to participate on “Dream Teams”…) may assist our overseas colleagues to capture the feasibility of such practices in the new world order of pro sport, perhaps declaring such insistence of NSFs and ISFs irrational, outdated, and how about… contrary to the respective national and international laws on ind. freedoms/labor/services provision…
(examples: FIBA~H3.6.3 Players’ availability to play for a national team
H.3.6.3.1 General principles (see also H1.12).
a) Any club which signs a contract with a player is obliged to release
that player when he is summoned by a national member federation
to play for its national team in any age category in a main official
competition of FIBA.
b) Any player registered with a club is obliged to reply in the
affirmative when summoned to play for his national team.
FIFA~http://www.fifa.com/mm/document/affederation/administration/ps%5f792%5fen-annex%5fii%5f74.pdf)

Enjoy the rest of your summer and your good work

Best wishes

Tassos

(More Cotonou discussion archives available upon request)

–

Yes it’s an interesting story. What strikes me besides the legal issues is
that the Cotonou agreement has been in force since 2000 and it is not until
now that a club, and a small club, raises the issue. Not even the major
clubs in Denmark that have full time lawyers on their staff noticed this. I
guess it just goes to show that the level of awareness of rights is still
very low and the unclear legal frame in European sports a very pressing
issue to be dealt with – difficult to make regulations when you can’t
foresee the EU’s actions.

Tassos, thanks for pointing out this very interesting issue. I’d gladly
clarify the case:

Randers FC, a Danish Superleague club, posed a question to the Danish
Football Federation, DBU, for them to confirm that they could put all their
African players on the field at the same time. They referred to the Cotonou
agreement as well as DBU’s regulations that state that: a team in the
tournament can use an unlimited number of players with citizensship from the
following countries: (1) EU countries (2) EEA countries Norway, Iceland and
Switzerland (3) the countries that at any time may have entered into an
official coorperation or association agreement with the European Union (my
translation).

The DBU sought legal counselling and the answer was clear that the current
African players for Randers FC could all be on the field at the same time
seeing that the Cotonou agreement falls under point 3 in the DBU
regulations.

The DBU has acknowledged that their regulations might not have foreseen this
situation. This season they have to allow Randers FC to put their players on
the field, however they are looking into changing their rules to “close this
gap” in their regulations. They will be looking in to different
possibilities in the near future with their eye on their European neighbours
where salary minimums, sports or geographical criteria are used to limit the
number of non EU players.

Since the case did not go to court there are no transcripts it’s a pure
administrative decision.

Should you need any further information on the case please do not hesitate
to contact me, I’ll see what I can find.

Best regards
Bettina Kuperman, LLM
TSE Consulting

–

The interesting developments in sport law and policy from the Old
Continent continue.
The matter of the Cotonou agreement b/t the EU and African, Caribbean,
and Pacific (ACP) States has been a favorite subject of discussion in
recent past. Attached below are some important contributions and I
recommend Roberto Branco Martins' article from 2004 in the ISLJ re:
Kolpak, trade association agreements, and possible extensions (check
Footnote 6).

It appears a Danish High Court (colleagues from Denmark please
correct, the article I reviewed was in Greek) has rendered the
application of the Cotonou agreement appropriate in Danish soccer
competition, thus allowing four African state nationals to participate
w/o using foreign players' spots on their team (Raders, sp?).
The said article discusses the potential impact for EU member states'
national courts' decisions that may be forthcoming, prior to any Court
of First Instance (CFI)/European Court of Justice (ECJ) litigation,
European Commission (EC) policy intervention, and developments w/i the
sport federations.

To kick things off, has there been any discussion in Denmark for the
aforementioned application in basketball and other sports at present?
Any discussion of the federations proceeding with CFI/ECJ motions?

Further, is anyone in possession of an English translation of the case
transcript from Denmark? I believe our colleagues would like to have
it for reference.

Any further references you deem pertinent, please advise for our review.

I rest here. Please find related links below.

Best wishes

Tassos

--

Martins, R. B. (2004). The Kolpak Case: Bosman Times 10? International
Sport Law
Journal, 1-2, 26-33.

under:

http://www.sportslaw.nl/documents/cms_sports_id59_1_ISLJ_2004-1-2Def.5.pdf

For an overview of the Cotonou agreement:

http://www.ecdpm.org/Web_ECDPM/Web/Content/Navigation.nsf/index2?readform&http://www.ecdpm.org/Web_ECDPM/Web/Content/Content.nsf/7732def81dddfa7ac1256c240034fe65/1942efab4c863cfdc1256e97004d1c78?OpenDocument

http://europa.eu/scadplus/leg/en/lvb/r12101.htm

http://ec.europa.eu/development/body/cotonou/index_en.htm

http://www.acpsec.org/en/conventions/cotonou/accord1.htm

For cricket aficionados, Simon Boyes' ESLJ article on the same matter:

http://www2.warwick.ac.uk/fac/soc/law/elj/eslj/issues/volume3/number1/boyes/

I wish to thank Greg for taking the time to respond. It truly means a
lot to our colleagues researching the legal issues involved. It also
says a lot about Greg, considering all the time constraints and
multi-faceted obligations of these days.
Once more warmest compliments on a commendable, superb job!

As we are in the education business of young people, it is my belief
that young scholars and lawyers have a whole lot to learn from the
preparation, argument, and consistent defense of this case. It would
be fascinating to hear Greg speak to our students in regard to all the
personal as well as professional demands this case posed, and all the
ramifications such a case may have for the counsel and his/her
social/professional environment...
What is furthermore intriguing, for all of us lovers of procedure, is
IAAF's attitude and handling of the notification process for the said
test of Kostas and Katerina... As one once said, "it would appear
intuitively obvious to the casual observer" that IAAF's side did not
wish to engage in further challenges of its notification procedure
(not to mention possible interpretations of both the letter and the
spirit of IAAF law -- in re: missing and evading a test -- as Greg
instrumentally posed for us in this correspondence), which was so
masterfully exposed by Greg's preparation and argument of the case...
Hence, one cannot possibly be found in violation of evading a test
that was not transparently and beyond any doubt communicated to the
athlete...correct?
As we frequently see with related litigation, following a decision
(and arbitration award, settlement etc...), the Governing Body (in our
US cases we have seen it multiple times w/ NCAA as well as pro
leagues' policy responses) goes back to draft policy that attends to
the important precedent, importantly for us to understand, regardless
of a successful or not litigation... In this case, IAAF's procedural
mechanism obviously renders amendments necessary, and we have our
Greek compatriots to thank for it... One hopes that even after a
successful litigation, IAAF law would be amended to deal with
contemporary realities...
In regard to the missed tests and the actual communication process
(and any IAAF's efforts to --obviously not vehemently enough-- defend
its practices) one can form one's own judgments... Certain things are
only open to conjecture, refutations with concrete evidence, and for
Kostas, Katerina, and Greg to know in regard to what actually takes
place underneath the present IAAF regulatory framework...
Perhaps the historians of the future may deliver objective judgments
per ISFs' role in assuming a particular stance against "moral
problems" sport faces in our time, and whether we, from any position
we may serve, did enough to leave this a better place...

Wholehearted wishes to all for a somewhat relaxing, reflecting, and
recharging summer! Best to you and yours

Tassos

On 6/28/06, Gregory Ioannidis wrote:
>
>
> Dear All
>
> Thank you for your kind words.
>
> Your support is greatly appreciated. Myself, Kostas and Katerina wish to
> acknowledge your valuable comments and your constructive criticism,
> throughout the period of the last 19 months of this unprecedented legal
> battle.
>
> In relation to the IAAF rules below, I would like you to identify the three
> elements of the offense: failure, refusal and evasion.
>
> 1) Which ones are subjective?
> 2) Which ones require knowledge prior to the test?
> 3) Can you miss and evade a test at the same time?
>
> You could perhaps now start comprehending the dynamics of the case.
>
> I am at your disposal for anything that you may need to ask.
>
> Greg
>
> Dr. Gregory Ioannidis
> Lecturer in Sports Law, Barrister
> Master of the Moots
> Buckingham Law School
> Counsel to Mr K. Kenteris & Ms E. Thanou

--
Interesting times, or "o tempora, o mores":

http://www.tas-cas.org/en/medias/media2.htm

http://www.iaaf.org/antidoping/news/Kind=2/newsId=35112.html

Congrats to Greg, and anyone involved in the case before the CAS...

Respecting lawyer-client privacy and the wonderful representation
Katerina and Kostas were privileged with, one in a sane state of mind
cannot pose bold Qs to their counsel...

I'll just pose the thought that the IAAF appeared to have a lot to
gain from wrapping this up promptly...

Judgments are yours to make and I would be intrigued to hear any
thoughts, opening up the forum first to Greg in re: academic
discussion and the nature of the IAAF Rules 32.2(c) and 32.2(d)
violations

Refer to:

http://www.iaaf.org/newsfiles/33048.pdf

Have a terrific summer

Tassos