The International Sports Law Journal 2005, No
Total Page：16
File Type：pdf, Size：1020Kb
2005/3-4 The Pyramid and EC law Status of Players’ Agents Simutenkov Case IAAF Arbitration Panel CAS Ad Hoc Division in Athens An Irish CAS? Professional Sport in Poland Sports Image Rights Homegrown Players TV rights in Bulgarian Football Code of Ethics in Romania CMS Derks Star Busmann It’s pretty clear. As the keeper you have only one goal: to stop the balls whizzing past your ears. A flawless performance, that’s what it’s all about. On the ball, right through the match. With your eye on the defence. You have to focus on that one goal. And pounce on that one ball. Because keeping the score at nil is all that matters. ...on the ball. Being on the ball is just as important in business as in hockey. CMS Derks Star Busmann supports your business with full legal and fiscal services. A goal-focused and practical approach with you at the centre. Cases and faces is what CMS Derks Star Busmann is all about. Contact our sports law specialists Eric Vilé ([email protected]), Dolph Segaar ([email protected]) or Robert Jan Dil ([email protected]). www.cmsderks.nl CONTENTS Editorial 2 ARTICLES Is the Pyramid Compatible with EC Law? 3 The IAAF Arbitration Panel. The Heritage of Two Stephen Weatherill Decades of Arbitration in Doping-Related Disputes Christoph Vedder 16 The Laurent Piau Case of the ECJ on the Status of Players( Agents 8 The Ad Hoc Division of the Court of Arbitration Roberto Branco Martins for Sport at the Athens 2004 Olympic Games - An Overview 23 The Simutenkov case: Russian Players are Domenico Di Pietro Equal to European Union Players 13 Frank Hendrickx An ‘Irish Court of Arbitration for Sport’? 28 Michelle de Bruin PAPERS Professional Sport in Poland. The Role of Legal The Legal Dimension of Ethics in Sports 38 Regulations 31 Alexandru Virgil Voicu Marian Rudnik Protecting and Exploiting Sports Image Rights 42 Current Issues in Polish Professional Football 34 Ian Blackshaw Andrzej Wach OPINION UEFA’s Declaration on ‘Homegrown Players’ 51 Should Sports Disciplinary Proceedings Be Michael Gerlinger Held in Public? 54 Ian Blackshaw Doping is a Sporting, Not an Economic Matter 51 Ian Blackshaw Football Broadcasting Rights - The Situation in Bulgaria 55 The Database Right and The Spin-Off Theory 53 Boris Kolev Nick White ‘What a Waste of Money’. The English High Court Dips its Toe in the Murky Waters of Transfer Valuations and Negotiations 53 John O’Leary CONFERENCES Asser Seminar on Sports Image Rights, Amsterdam, 3 May 2005 57 DOCUMENTS Romania: Code of Ethics and Ethics Publication of CAS Awards (per March 2005) 68 Commission 59 Case Digest - SportBusiness International, October 2003/December 2004 - January 2005 62 2005/3-4 1 EDITORIAL Recently, European sports judgments have proliferated, which may In the first half of this year the ASSER International Sports Law serve to illustrate the still growing importance of the European Union Centre held seminars concerning “Sports Image Rights” in Lisbon, and with it of Community law for professional sports. The Meca- Amsterdam, Munich and London following the publication of the Medina and Majcen Case of 30 September 2004 deals with the anti- book by the same title by T.M.C. Asser Press. In February last in doping rules of the IOC and the freedom of athletes from a competi- Lisbon, Abreu, Cardigos & Associados Law Firm and the Portuguese tion law perspective. The case of The British Horseracing Board Ltd Ministry of Sport were closely involved. In Amsterdam, cooperation and others v. William Hill Organisation Ltd of 9 November 2004 - and took place with the Hugo Sinzheimer Institute for labour law of related cases in the field of football - concerns the legal protection of Amsterdam University and with CMS Derks Star Busmann Law databases on these matters. In the Laurent Piau Case of 26 January Firm. In Munich, this role was fulfilled by TaylorWessing Law Firm 2005, the European Court of Justice tested the FIFA Players’ Agents and in London by Couchmann & Harrington Associates. On 25 April Regulations against European competition law. Finally, the European last a seminar concerning “Good Governance and Integrity in Sport” Court delivered a judgment in the Simutenkov Case on 12 April 2005 featured on the Asser Institute agenda, during which among other concerning the status of a Russian professional football player in things the NOC*NSF Recommendations on this point were explained Spain which followed up Kolpak. A critical analysis of the FIFA by John Jaakke, Partner at Van Doorne Advocaten, Chairman of Ajax mandatory players’ release system for international matches is to be Amsterdam and a member of the NOC*NSF Committee for this found in Professor Stephen Weatherill’s leading contribution on the topic, and the results were presented of the study “Preventive screen- pyramid structure in European professional football. This issue also ing of professional football as a branch of industry” by KPMG Inte- considers the new UEFA rules concerning the number of locally grity & Investigation Services, as assigned by the Dutch Ministry of trained players in the European club competitions in the light of Justice. Community law. In this context, it is worth mentioning that the Asser Institute has Finally, we extend a heartfelt welcome to the ISLJ Advisory Board’s recently implemented a research assignment from the European new members: Prof. Alex Voicu, Faculty of Physical Education and Parliament concerning professional sports (and football in Europe in Sport, University of Cluj-Napoca and Dan Visoiu, both Members of particular) and the rules of the Internal Market. The study was con- the Ethics Commission of the Romanian Olympic and Sports ducted in cooperation with Dr Richard Parrish, Edge Hill College, Committee. United Kingdom, and Sport2B in The Netherlands. It was presented at a press-conference in Strassbourg on 28 September this year. The Editors ASSER/SENSE SEMINAR in cooperation with Abreu, Cardigos & Associados, Lisbon, and the Ministry of Sport of Portugal Monday 14 February 2005 Venue: Museu Vieira da Silva, Lisbon Opening: 15.00 hours “The European Union and Sport: Sports Image Rights and Other Current Developments” Speakers: Alexandre Miguel Mestre, Adjunct to the Secretary of State for Sport Roberto Branco Martins, Research Fellow, ASSER International Sports Law Centre and Lecturer in Labour Law and Sport, University of Amsterdam Prof. Ian Blackshaw, International Centre for Sports Studies (CIES), University of Neuchâtel, Switzerland, and Member of CAS César Bessa Monteiro, Partner, Abreu, Cardigos & Associados The meeting was chaired by Dr Robert Siekmann, Director, ASSER International Sports Law Centre and Dr Pedro Cardigos dos Reis, Partner, Abreu, Cardigos & Associados. 2 2005/3-4 Is the Pyramid Compatible with EC ARTICLES Law? by Stephen Weatherill* 1. Introduction mattered on turf. The transfer system was radically amended and the The European Commission’s Helsinki Report, which was published system of intra-EU nationality discrimination in club football was in 1999, includes the assertion that ‘the pyramid structure of the abandoned as the direct and unavoidable consequence of the judg- organisation of sport in Europe gives sporting federations a practical ment. monopoly. The existence of several federations in one discipline would risk causing major conflicts ...’. 1 Indeed it would create such 3. EU sports law and practice a risk. It is not the purpose of this short paper to argue a case in favour Since Bosman the body of ‘EC sports law’ has grown fat. One may of an injection of competition into the job of fixing the rules of the readily cite important judgments of the Community judicature such as game. This contribution is instead driven by a concern that the pyra- Deliege v Ligue de Judo 5, Lehtonen et al v FRSB 6, Deutscher mid structure, and its consequent attribution of monopoly power to Handballbund eV v Maros Kolpak 7, David Meca-Medina and Igor sports federations, goes beyond what is required for the proper organ- Majcen v Commission 8, and Igor Simutenkow 9. The Commission ization of European sport (in particular, football). A considerable too has been actively engaged in assessing how EC law affects the degree of the monopoly power enjoyed by sports federations has pro- autonomy of decision-makers in sport. One may readily cite richly found commercial implications, and it is submitted that the current- illustrative decisions such as UEFA/Mouscron 10, FIA (Formula One) ly constituted pyramid structure is inadequate to allow proper repre- 11, and the formal Commission Decision published as UEFA sentation of and participation by all affected interests. Litigation is Champions League giving a green light to collective selling arrange- pending, and its potential impact is summarised. In particular, this ments 12 - and this is very far from an exhaustive list. The Commission’s paper makes a case in favour of allowing a more direct involvement in explorations have largely concerned Articles 81 and 82, the EC Treaty some aspects of decision-making by the major clubs than is permitted provisions governing competition law, rather than the free movement by the pyramid structure; and EC competition law is identified as a provisions which provided the cutting-edge for the Court’s initial lever for achieving a re-shaping of the organisation of the game. incursions into sporting autonomy. But, taken in the round, the basic approach to which both the rules on competition and those on free 2. EU sports law and policy - the constitutional background movement are wedded is the same - to what extent is sport able to A brief inspection of the constitutional background is helpful in show that it has distinctive characteristics and concerns which must be establishing an appreciation of the delicacy of the matter.