Sports Law & Taxation formerly known as: Global Sports Law & Taxation Reports (GSLTR) Contents 2020/01 Settling international sports disputes through the Court of Arbitration for Sport – Part one 2020/02 Gender discrimination impact on US sports – Part two 2020/03 International tax aspects of esports – Part one 2020/04 Esports gamers cannot be considered as sportspersons for income tax purposes according to the Turkish tax administration 2020/05 Swimming: FINA v. International Swimming League. A new tension between sport and competition law? 2020/06 Basketball: Image rights agreements and guaranteed employment contracts 2020/07 CAS jurisprudence through the lens of the tax expert 2020/08 Football: Assignment of image rights and the Xabi Alonso case 2020/09 Sun, sand and bright lights. Taxation of artists and sportspersons in Portugal 11M1 march 2020 GSLTR11-1.indd 1 24-02-2020 21:53:03 GSLTR11-1.indd 2 24-02-2020 21:53:03 Colofon Table of Contents managing editor Vol. 11 No. 1 March 2020 Dr. Rijkele Betten consulting editor Editorial 4 Prof. Dr. Ian S. Blackshaw members of the editorial board Articles Prof. Guglielmo Maisto Maisto e Associati, Milano 2020/01 Settling international sports disputes through the Court of Arbitration for Sport – Part one Dr. Dick Molenaar by Ian Blackshaw 8 All Arts Belastingadviseurs, Rotterdam 2020/02 Gender discrimination impact on US sports – Part two Mr. Kevin Offer by Paul J. Greene , Matthew D. Kaiser and Yelena G. Hazim, LLM 13 Hardwick & Morris LLP 2020/03 International tax aspects of esports – Part one Mr. Mario Tenore by Robert Esau 18 Maisto e Associati, Milano 2020/04 Esports gamers cannot be considered as sportspersons for coordinator income tax purposes according to the Turkish tax administration Erica Pasalbessy (MSc) by Dr. Alara Efsun Yazıcıoğlu 26 Nolot P.O. Box 206 2020/05 Swimming: FINA v. International Swimming League. 5270 AE Sint-Michielsgestel A new tension between sport and competition law? The Netherlands by Rohit Walavalkar 30 Tel.: +31 (0)625279308 Fax: +31 (0)735530004 2020/06 Basketball: Image rights agreements and E-mail: [email protected] guaranteed employment contracts by Vassil Dimitrov 38 For further information on the activities of Nolot see: 2020/07 CAS jurisprudence through the lens of the tax expert www.nolot.nl. by Mario Tenore and Panagiotis C. Roumeliotis 42 ISSN nr.: 211-095 2020/08 Football: Assignment of image rights and the Xabi Alonso case © Nolot 2020 by Mariana Díaz-Moro Paraja 48 All rights reserved. 2020/09 Sun, sand and bright lights. Taxation of Preferred citation: GSLTR 2020/1, at page artists and sportspersons in Portugal number(s) by Serena Cabrita Neto, Dinis Tracana and João Rodrigues 52 disclaimer 2020/10 Just how marginal can gains be? Why Ivey v. Genting Whilst every care has been taken in the Casinos (UK) Ltd may have implications for sporting competition production of this publication and its by Kris Lines 57 contents, the publisher and the authors of the articles and reports cannot 2020/11 Interview with Formula 3 and 4 driver Vladimiros Tziortzis accept any legal liability whatsoever for by Athena Constantinou 62 any consequential or other loss arising therefrom incurred by any subscribers or other readers as a result of their relying on any information contained therein, which is not intended to constitute any advice on any particular matter or subject but merely provide information of a general character. © nolot march 2020 3 GSLTR11-1.indd 3 24-02-2020 21:53:03 sports law & taxation EDITORIAL It is with much pleasure that we welcome readers has since brought an application (no. 74989/11) against to the March 2020 edition (citation: Sports Law & Switzerland with the European Court, which is ongoing. Taxation 2020/1) of our ground-breaking journal The second to fourth applicants are amateur football and on-line database Sports Law and Taxation. players. Proceedings were brought against them with the TFF when they were accused in 2010 of match-fixing during As usual, association football (soccer) continues to claim an important end of season match for their team, Şçmeler widespread attention, both on and off the field of play. Belediyespor Kulübü. In a first-instance decision by the Following the European Court of Human Rights Decisions Amateur Football Disciplinary Committee of the TFF, it was in the Pechstein and Mutu cases of 2 October 2018 and found that the applicants had committed the disciplinary confirmed on 4 February 2019 by the Grand Chamber of the offence of “influencing the match result” and were banned Court, there has been another landmark decision issued from any football-related activities for a year. This decision by the Court on 28 January 2020 in the case of Ali Rıza was then unanimously upheld by the Arbitration Committee. and Others v. Turkey (application nos. 30226/10, 17880/11, Mr Akal, the fifth applicant, is a football referee. He lodged 17887/11, 17891/11 and 5506/16). This is purely a football an objection with the TFF Arbitration Committee in 2015 case and the Court came to the conclusion that Turkey about the Federation’s decision to downgrade him from top- must reform its system for settling football disputes level assistant referee to “provincial referee”. The committee to conform to art. 6.1 of the European Convention on dismissed his objection, finding that his downgrading Human Rights.1 In view of its importance, we set out the had been in accordance with the law and procedure. text of the Court press release of 28 January 2020 giving the details of the case and the findings as follows: Complaints, procedure and composition of the Court Relying on Article 6 § 1 (right to a fair hearing and access to Principal facts court), all five applicants alleged that the proceedings before The applicants were Ömer Kerim Ali Rıza, a dual British and the Arbitration Committee had lacked independence and Turkish national, and Fatih Arslan, Şaban Serin, Mehmet impartiality. They alleged in particular that the members of Erhan Berber, and Serkan Akal, Turkish nationals, who were the Committee who had decided on their cases were biased born in 1979, 1974, 1980, 1981, and 1977 respectively. They live in towards football clubs because they had been appointed Broxbourne (the UK), Mugla, Kocaeli and Zonguldak (Turkey). by the TFF’s Board of Directors, which was predominately Mr Rıza was a football player for Trabzonspor Kulübü composed of former members or executives of football clubs. Dernegi, a club in the top Turkish professional league. He They all, except for Mr Rıza, also made several other returned to England, his home country, in 2008 and the complaints under Article 6 § 1 about procedural club brought proceedings against him with the Turkish shortcomings in the proceedings, and the lack of Football Federation (“the TFF”) for breach of contract. In judicial review of the decisions against them. his defence he submitted that the club owed him salary The second to fourth applicants complained under arrears and match appearance fees. The TFF Arbitration Article 1 of Protocol No. 1 (protection of property), Committee ultimately found in 2009 that he had wrongfully taken alone and in conjunction with Article 13 (right terminated his contract and fined him approximately 61,596 to an effective remedy), that banning them for a year euros (EUR). He applied against this decision to the Swiss- from football had deprived them of their income. based Court of Arbitration for Sport, but his application was The application was lodged with the European declared inadmissible for lack of jurisdiction. An appeal Court of Human Rights on 20 April 2010. to the Swiss Federal Court was dismissed in 2011 and he Judgment was given by a Chamber of seven judges, composed as follows: 1 Under art. 43 and 44 of the Convention, this Chamber judgment is not Robert Spano (Iceland), President, final. During the three-month period following its delivery, any party may Marko Bosnjak (Slovenia), request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case Valeriu Gritco (the Republic of Moldova), deserves further examination. In that event, the Grand Chamber will hear Egidijus Küris (Lithuania), the case and deliver a final judgment. If the referral request is refused, Ivana Jelic (Montenegro), the Chamber judgment will become final on that day. Arnfinn Bårdsen (Norway), Once a judgment becomes final, it is transmitted to the Committee of Saadet Yüksel (Turkey), Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found on www.coe.int/ and also Stanley Naismith, Section Registrar. en/web/execution (accessed 17 February 2020). 4 march 2020 © nolot GSLTR11-1.indd 4 24-02-2020 21:53:03 sports law & taxation Editorial Decision of the Court former members or executives of football clubs. Amateur footballers’ complaints Similarly, the wide powers given to the Board of Directors The Court rejected the applicants’ complaints under had to have been at work in Mr Akal’s dispute, which Article 6 § 1 as inadmissible because that provision was was of a regulatory nature. The board set the rules not applicable to the proceedings against them. governing the composition, principles and procedure of In particular, at the time of the events under Turkish law, the functioning of the Central Referee Committee of the influencing a match result was a disciplinary offence TFF, the first-instance body which had decided on his involving the risk of a three-year ban and did not concern case. Indeed, TFF rules required that the list of referees the determination of a criminal charge under Article 6.