SPECIAL REPORT

TPO/TPI: an update

TPO/TPI Indian perspective

Third-Party Ownership of players’ economic rights in the context of the Indian Super League and I-League

By Shwetha CHANDRASHEKAR and Mahit ANAND* Lawyers, GameChanger Law Advisors Bangalore - India

Mumbai (India) – On 26 September 2015, (L-R) Brazilian footballer and Chennaiyin FC player Elano BLUMER, Portuguese footballer and Atletico de Kolkata striker Helder POSTIGA, Brazilian footballer and FC Goa player LUCIO, Norwegian footballer and Delhi Dynamos FC player John RIISE, French footballer and Delhi Dynamos FC player Florent MALOUDA, English footballer and Kerala Blasters FC player Sanchez WATT, Romanian footballer and FC Pune City player Adrian MUTU, Portuguese footballer and North East United FC player Simao SABROSA and French footballer and Mumbai City FC coach Nicolas ANELKA pose with the Indian Super League (ISL) football tournament trophy for the 2015 season during the media interaction session. ______

Introduction countries (where the ownership of ISL vs. I-League: players’ economic rights by third Applicability of FIFA and The Indian Super League (ISL), which parties has largely remained had its inaugural season in 2014, has unfettered), warrants an analysis of AIFF Statutes and undoubtedly increased the popularity the applicability of the worldwide ban of football in India, a country where imposed by FIFA on Third-Party Regulations Ownership of players’ economic the sporting landscape has been 43 largely dominated by the game of rights (TPO) in the context of the ISL. In 2007, AIFF decided to rebrand cricket. In 2015, ISL became the fourth In Section I of this article, we have India’s first official domestic league, biggest league in the world in terms of analysed the key differences between National Football League, as ‘I- average attendance, partly owing to I-League, the officially recognized League’. The I-League operates on a the introduction of foreign marquee football league of India, and the ISL to system of promotion and determine if All India Football relegation with the I-League players like Helder POSTIGA, nd 42 Elano BLUMER and Roberto CARLOS. ISL Federation’s (AIFF) regulatory reach 2 Division as well as on a system franchisees have signed foreign equally extends to both the I-League of direct-entry. Unlike the model players hailing from popular and the ISL. Section II of this article followed by the I-League, the ISL footballing countries such as Brazil, studies FIFA’s TPO regulations and the operates on a franchise system and Argentina, Columbia, Portugal, Spain obligation of national associations, has been structured along the lines of and France. This has significantly specifically the AIFF, to abide by, the Indian Premier League (IPL) - a raised viewership of the sport and implement and regulate FIFA statutes professional cricket league in India attracted commercial interests in and regulations on national level contested annually by franchise teams league football in India. leagues and competitions. Section III representing different Indian cities. specifically analyses the applicability Similarly, the ISL comprises of However, the creation of an arm of of the TPO ban on I-League and ISL in 8 franchise teams which are backed by Indian football that is run as a purely order to understand the implications corporate giants, decorated commercial enterprise is a double of such a ban on the sport of football sportspersons and highly successful edged sword. The commercialization in India. members of the Indian film industry. The players for ISL clubs are selected of league football, combined with the 44 signing of foreign players from through a process of auction. In European and South-American accordance with the ISL 2015 Player

42 44 How India’s ISL became world football’s fourth biggest ISL 2015 Player Auction and Draft Rules, Official 43 league, Saptarshi Ray, 23 December 2014 FIFA Circular no. 1464, 22 December 2014 website of the Hero Indian Super League www.theguardian.com/football/blog/2014/dec/23/india- www.fifa.com/mm/document/affederation/administratio www.indiansuperleague.com/news/2114-isl-player- super-league-fourth-biggest-league n/02/49/57/42/tpocircular1464_en_neutral.pdf auction-and-draft-rules

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TPO/TPI: an update

TPO/TPI Indian perspective

Auction and Draft Rules, each ISL clubs must have one association recognised applicability of the TPO Regulations to was given a salary cap of by the federation, with the league AIFF and AIFF’s obligations to INR 200 million (approx. being a separate organisation implement and adhere to the same. EUR 2.6 million) within which they subordinate to the said association. were allowed to bid for players from Article 18 of the General Provisions of the auction list. Each ISL club was the FIFA Statutes clearly states that Are national permitted to sign on a minimum of each association will define the scope, one foreign marquee player and a authority, rights and duties of the Associations obligated maximum of five international players. leagues under its regulatory umbrella. ISL is co-promoted by IMG- to abide by FIFA’s TPO Reliance (the joint venture between Pursuant to the AIFF Strategic Plan ban? IMG and Reliance Industries), Star 2014-17 (AIFF Strategic Plan)49, the ISL 45 India and supported by the AIFF. is governed by a joint committee from Further to the circular issued by FIFA AIFF and IMG-Reliance, wherein AIFF on 22 December 201451, the complete The introduction of the ISL did handles the regulatoryg y aspects p of the prohibition of TPO came into force on promise some much-needed changes leagueg and IMG-Reliance and Star 1 May 2015. Article 18ter of the FIFA with regard to the advancement of India are responsible for the Regulations on the Status and Transfer Indian football. There has been a clear promotion and implementation of the of Players52 imposed a blanket focus on the development of local competition. In the recent past, AIFF worldwide ban on TPO, specifically infrastructure and talent at the grass- has displayed its regulatory authority prohibiting any entity that is not a 46 root level. However, some pertinent by imposing fines under the AIFF club from being entitled to any questions have been raised. Does the Disciplinary Code on FC Goa’s economic benefits arising from player ISL have the same official recognition marquee player Robert PIRES, Atletico transfers. FIFA also provided for a as that of the I-League? Would a de Kolkata’s striker Fikru LEMESSA and transitional period which allowed worldwide ban by FIFA of TPO be head coach Antonio LOPEZ HABAS existing TPO agreements (signed applicable to the ISL clubs and their (FC Goa and Atletico de Kolkata being before 1 January 2015) to run their players? two of the eight franchises natural course and those signed participating in the ISL) for offensive between 1 January 2015 and Both the AIFF and FIFA have behaviour during an ISL encounter 31 April 2015 to be valid for a 50 unequivocally recognized the I-League between the two teams. maximum duration of one year from as the official and primary football the date of the agreement. league in India. Mr Jerome VALCKE, Therefore, the AIFF does have the former Secretary General of FIFA, has authority to exercise its powers and Pursuant to Article 1(c) of the FIFA stated that “I-League is the only impose sanctions in the event that an Regulations53, Article 18ter is binding league in India. You cannot have two ISL club or player is found in violation on all national associations and the leagues in a country. We will not call of the AIFF rules and regulations same should be included without ISL a league, though it's a good governing the sport. But the question modification in every association’s 47 platform for budding talent.” remains as to whether its regulatory regulations on status and transfer of Further, Article 10 of the General reach can and must extend to players. The aforementioned article 48 Provisions of the FIFA Statutes enforcing FIFA Statutes to the ISL. That specifies the scope of TPO regulations stipulates that every member nation is, does the AIFF need to enforce the which shall be applicable to all FIFA TPO ban to regulate the signing associations that are registered with and transfer of players by the ISL 45 FIFA, therebyy including g the AIFF. About the Indian Super League, Official website of the clubs, if and when a violation is Hero Indian Super League www.indiansuperleague.com/about-indian-super-league detected? Or does it in fact have Article 1(5) of the Constitution of AIFF 46 Two Leagues One Goal: Should India’s Two Leagues greater freedom to determine the (AIFF Constitution) states that AIFF is a Merge to Improve Indian football?”, Saurabh Sharma, rules and regulations governing the ISL 27 August 2015 member of FIFA. It is therefore www.lawinsport.com/features/item/two-leagues-one- owing to the fact that the ISL is not a obliged to respectp the statutes, goal-should-india-s-two-leagues-merge-to-improve- FIFA recognized league? In the next indian-football#references regulations, directives and decisions 47 I-League is India’s Real League, ISL short-term Booster: section, we have analysed the AIFF, 15 October 2014 www.ibnlive.com/footballnext/news/i-league-is-indias- 51 Ibid 1. real-league-isl-short-term-booster-aiff-720432.html 48 49 52 Article 18 (Status of Leagues and other groups of Ibid 2. Article 18ter, FIFA Regulations on the Status and 50 Clubs) of FIFA Statues - Regulations Governing the AIFF Fines Arsenal Legend Pires, Atletico de Kolkata Transfer of Players, 21 Application of the Statutes Standing Orders of the Striker Fikru and Coach Antonio Habas, Ians, 25 October www.fpf.pt/Portals/0/Documentos/Centro%20Document Congress 2014 acao/FIFA/regulationsonthestatusandtransferofplayersap ril2015e_neutral.pdf www.fifa.com/mm/Document/AFFederation/Generic/02/ www.sportskeeda.com/football/aiff-fines-pires-fikru- 53 58/14/48/2015FIFAStatutesEN_Neutral.pdf habas See p. 7 (Art. 1(3)(a)) of the FIFA Regulations

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TPO/TPI: an update

TPO/TPI Indian perspective

of FIFA and to ensure that these are Currently, the AIFF Regulations only Applicability of the TPO likewise respected by its members.54 include the provision relating to Further, one of the objectives of AIFF, Article 18bis i.e. Third Party Interest in ban on I–League and ISL as outlined in Article 2 of the AIFF Clubs (TPI) which prohibits the clubs Constitution is to “organize its own to enter into contracts that may annual domestic and international jeopardise the club’s independence, clearly established that any FIFA competitions”, “drawingg up p its policies or the performance of its Regulation, including the FIFA ban on regulg ations and provisionsp and ensure team and freedom of decision making TPO is relevant to all organized their enforcementf ” and “control everyy in employment and transfer related football competitions, including the I- typeyp of f association footballf l, including matters, and do not contain the League and ISL in India. We have also friendly matches by taking provisionp relating g to prohibitionp of established that while the primary appropriate steps to prevent TPO, i.e. Article 18ter. regulatory responsibility falls on the infringements of the Statutes, AIFF to draw up regulations and regulationsg or decisions of f FIFA, AFC, However, we argue that the mere enforce them, it does not take away AIFF or of the Laws of the Game.” absence of the wordings of from FIFA’s ability to sanction ISL or I- Article 8 of the AIFF Constitution Article 18ter in the AIFF Regulations League clubs for violations in relation requires that the conduct of will not hinder FIFA from imposing to the transfer of international players members, affiliated units, sanctions on AIFF or any organized through TMS as any foreign player committees, officials and players must football league for violation of Article must be processed through the TMS in be in strict observance of the Statutes, 18ter and other related FIFA Statutes order to participate in or be a part of a Regulations, decisions and Code of and Regulations, especially in relation club in India. Given that foreign Ethics of FIFA, AFC and AIFF in their to transfers of international players. marquee players are one of ISL’s activities. The underlined phrases in Cross-border movement and transfer primary attractions, ISL clubs must this paragraph clarify that the AIFF is of players is controlled by FIFA seriously consider and adhere to the obligated to ‘respect’ FIFA statutes through its International Transfer FIFA TPO ban, irrespective of the fact and regulations. AIFF has the Certificate (ITC).55 Without an ITC, an that the AIFF Regulations are yet to authority to draw up regulations with international player is precluded from adopt without modification the respect to league sports, whether FIFA registering to play at a club in a new wordings of Article 18ter in relation to recognized or not, but at the same country. Therefore, every TPO. time to take adequate steps to international transfer, including one prevent infringement of FIFA statutes into an ISL club, would need to be It is also pertinent to read Article 5(1) and regulations. Owing to Article 1(c) processed through the electronic FIFA (Registration) of the FIFA Regulations of the FIFA Regulations, the AIFF is Transfer Matching System (TMS). applicable to all players who wish to also mandated to include without Through the TMS, FIFA will be able to participate in the ISL or I-League, modification Article 18ter which bans scrutinise transfers for compliance whether domestic or foreign, in the TPO of players’ economic rights. with FIFA regulations, especially context of the FIFA TPO ban. Article Article 18ter. Therefore if any 5(1) of the FIFA Regulations reads as violation of FIFA regulations is follows: “ A player must be registered >> Currently, the AIFF detected through the TMS, FIFA will at an association to play for a club as have the authority to impose either a professional or an amateur in Regulations do not sanctions under the FIFA disciplinary accordance with the provisions of code. article 2. Only registered players are contain the provision eligible to participate in organised In the final section of this article, we football. Byy the act of f registering,g g, a relating to prohibition have specifically analysed the playerp y agrees g to abide by y the statutes of TPO applicability of the FIFA TPO ban on and regulationsg of f FIFA, , the leagues under the AIFF, i.e. the I- confederationsf and the 56 League and the ISL. associations.” Therefore, in their individual capacities, players participating in the ISL or I-League, whether domestic or international, are obligated to comply with the FIFA TPO ban. 55 TPO ban is welcome, but now the hard work begins, Matt Scott, 24 December 2014 www.insideworldfootball.com/matt-scott/16092-matt- 54 scott-tpo-ban-is-welcome-but-now-the-hard-work-begins 56 Art. 1(5) of the AIFF Constitution See p. 10 of the FIFA Regulations

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TPO/TPI: an update

TPO/TPI Indian perspective

Conclusion of the existing salary cap.57 Therefore the importance of implementing and With the ISL gaining great momentum enforcing the FIFA TPO ban in India is in the last couple of years and the now more important than ever proposed merger of the I-League and before. In light of the above, it is the ISL looming around the corner, it recommended that the AIFF and ISL can be said that the ISL has achieved clubs strictly adhere to the FIFA TPO more than what was expected from it. ban and regulate the transfer of It has undoubtedly amplified the players as prescribed under the FIFA popularity of the sport in India by Regulations to avoid any FIFA bringing in foreign players and sanctions in the future. • coaches who have contributed to the development of the sport both at a professional level and at the grass- root level. While the AIFF continues to back the I-League as the primary club competition in India, the ISL has been influential in marketing the sport in India and has also been successful in bringing in increased investment into Indian football.

While the AIFF is vested with the responsibility of handling the regulatory aspects of the ISL, the extent of AIFF’s regulatory authority in connection with violations of the FIFA TPO ban remains unclear. The AIFF Regulations only provide for TPI in clubs and do not provide for TPO of players’ economic rights even though the inclusion of the same has been mandated by FIFA. But, as demonstrated in the article, FIFA can circumvent AIFF’s regulatory reach in connection with the transfer of foreign players owing to the TMS system for process of such transfers and impose sanctions on clubs and players for violation of FIFA’s regulation on prohibition of TPO.

ISL’s primary selling point both from a viewership perspective as well as from the perspective of fostering the development of football as a sport in India are the foreign marquee players being brought in. These foreign players originate from countries where the practice of TPO of players’ interest is still in existence. With the third season of the ISL around the corner, there have been discussions on the possibility of introducing inter- 57 club transfers in the ISL and allowing Indian Super League: Player auction and draft could be clubs to sign a marquee player outside scrapped, Rahul Bali, 15 January 2016 www.goal.com/en- india/news/7083/isl/2016/01/15/19338542/indian-super- league-player-auction-and-draft-could-be

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