2004/1-2 Court of Arbitration for Sport Participation in Olympic Games Sport Image Rights in Europe Cyberspace and Sport Work Permits in European Football Social Dialogue in Lithuania Transfer Rules in Greece Sports Law in Brazil Liability of Referees TV Rights (continued) Fiscal Issues in Sport 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 (d.segaar@cms- derks.nl) or Robert Jan Dil ([email protected]). www.cmsderks.nl CONTENTS Editorial 2 ARTICLES 2003: Annus Horribilis for South African 47 Lex Sportiva 3 Sport? James A.R. Nafziger Rochelle Le Roux The Individual Right to Participate in the 8 Liability of Referees (Match Officials) at 52 Olympic Games Sports Events Georg Engelbrecht Steve Cornelius Sports Image Rights under Italian Law 13 Team Sport and the Collective Selling of TV 63 Luca Ferrari Rights: The Netherlands and European Law Aspects Settling Sports Disputes in Cyberspace 20 Marjan Olfers Ian Blackshaw The Battle over Broadcasting Rights in 72 The Kolpak Case: Bosman Times 10? 26 Israeli Football Football Fears the Arrival of Bosman, Bosmanovic and Osman Joseph Eshed Roberto Branco Martins Is there a Legal Claim to Free Radio 76 Broadcasts of German Bundesliga Matches? Legal Regulation of the Relationship 33 between Football Clubs and Professional Michael Siebold and Joachim Wichert Players in Lithuania Netherlands Court of Appeal Deals with 78 Raimundas Jurevicius and Dovilé Vaigauskaité the Application of Tax Treaties to the Allocation of Income of a Professional Cyclist The Greek Transfer System for Athletes 37 from Activities Exercised Abroad Dimitrios Panagiotopoulos Rijkele Betten Brazilian Sports Law: An Overview 44 Luiz Roberto Martins Castro and Fábio Laudisio Corrêa PAPER UEFA and Football Governance: 81 A New Model Pierre Ducrey, Carlos Ferreira, Gabriel Huerta and Kevin Marston OPINION Legal Opinion on a Hypothetical Case: 84 Fat Fatter Fattest 85 State Prosecution of Sports Officials Ian Blackshaw Robert Siekmann Corporate Hospitality - An Effective Tool 85 The Interpretation of the FIFA Regulations 84 for Motivating Employees if Handled Properly for the 2006 FIFA World Cup on Eligibility of Ian Blackshaw Players Robert Siekmann BOOK REVIEW Ardi Kolah: Maximising the Value of 87 Hospitality, London 2004 /- 1 EDITORIAL his year, T.M.C. Asser Press in cooperation with the ASSER ball after the Kolpak Case, and, second, the article on labour relations International Sports Law Centre will publish the following in Lithuanian football by Raimundas Jurevicius and Dovilé Tbooks: The European Union and Sport: Legal and Policy Vaigauskaité. Documents, which will appear on the occasion of the enlargement of Further contributions included in this issue are also “country stud- the EU in and presents the European “sport acquis” for both the ies”. There is an article on sports law in Brazil by Luiz Roberto “old” and the “new” Member States; Sport Image Rights in Europe (see Martins Castro and Fabio Laudisio Correa, who are the President and the model “trailer” chapter on Italy by Luca Ferrari in this issue), and the Director respectively of the Brazilian Sports Law Institute in Sao finally The Court of Arbitration for Sports: The First Twenty Years - with Paulo. Their contribution among other things deals with the Zico and the support of CAS and in cooperation with the Rand Afrikaans Pele laws. Then there are two South African contributions, one by University (Johannesburg, South Africa) and Griffith University Rochelle le Roux on 2003: Annus Horribilis for South African Sport? (Brisbane, Australia) (see the “trailer” concluding chapter of this CAS and one by Steve Cornelius on liability of referees at sports events. Jubilee Book by Professor Jim Nafziger in this issue). The initiative to In this double issue of ISLJ the subject of the selling of TV rights produce the last two books mentioned was already taken in by in professional football in Europe is followed up (see earlier ISLJ Ian Blackshaw, contributing editor to ISLJ (see his article on the new / pp. -) by three country contributions: Marjan Olfers on subject of cyberspace and sport and his two Opinions in this issue) European law and the Netherlands, Joseph Eshed on the state of and also general editor of these books. affairs in Israel (a non-EU, but UEFA country) and Michael Siebold Georg Engelbrecht’s article on the individual right to participate in on the selling of radio broadcasting rights in Germany. the Olympic Games deals with the CAS Ad Hoc Division and Finally, the first contribution by Rijkele Betten on fiscal issues in reminds us of the Olympic Games to take place in Athens later this sport appears in ISLJ /-. year. There is another contribution related to Greece in this issue: Professor Dimitrios Panagiotopoulos, of the Universities of Athens Last but not least, a heartfelt welcome is extended to the Centre’s new and Sparta, explains the Greek transfer system for athletes. His article supporting partner Hudson Global Resources and the new Advisory can be regarded as part of a series of three articles on labour relations Board members Luiz Roberto Martins Castro and Rochelle le Roux, in sports, whereby the other two are, first, Roberto Branco Martins’ University of Cape Town. study on the question of work permits in European professional foot- The Editors The sketches Aldyr Garcia Schlee drew before he designed the Brazillan football kit (Alex Bellos, Futebol – The Brazilian Way of Life, Bloomsbury, London ). ASSER INTERNATIONAL SPORTS LAW SEMINAR within the framework of the EFFC Project in cooperation with the Polish Sports Confederation and the Polish Sports Law Association and under the patronage of the Minister for National Education and Sport of Poland “The European Union and Sport: Promoting the Social Dialogue in European Professional Football” Friday 2 April 2004 Speakers Prof. Andrzej Szwarc, Andrzej Kra´snicki, Robert Siekmann, Richard Venue Marriott Hotel, Warsaw Parrish, Roberto Branco Martins, Opening 14.00 hours Marian Rudnik and Andrzej Wach Registration is free. Please, contact Ms Dovilé Vaigauskaité, Conference Manager, 2 /- Lex Sportiva ARTICLES by James A.R. Nafziger* 1. Introduction may exercise autonomy by agreeing to the substantive law to be Arbitral awards are normally binding only in the cases and on the par- applied by the tribunal or by authorizing it to proceed ex aequo et ties to which they are addressed. Unlike judicial decisions in com- bono. If the parties do not choose their own law or agree to proceed- mon-law systems, arbitral awards therefore have no currency as stare ings ex aequo et bono, Swiss law applies. Either the chosen law or decisis. At the most, they may sometimes constitute a lex specialis. Swiss law then provides the rules for decision, on the basis of which In practice, however, the awards and opinions of the CAS provide the lex sportiva may develop. It is unlikely, as yet, that the parties guidance in later cases, strongly influence later awards, and often would choose the lex sportiva itself or even some blend of the lex function as precedent. Also, by reinforcing and helping elaborate sportiva with national law to govern a resolution of their dispute. established rules and principles of international sports law, the accre- Do such issues as the arbitrability of a dispute, the validity of an tion of CAS awards and opinions is gradually forming a source of that arbitration agreement, or judicial remedies against awards fall com- body of law. This source has been called the lex sportiva. fortably within the scope of the lex sportiva? The Secretary General of The concept of a lex sportiva, as a coherent and influential corpus the CAS has suggested that they do not; instead, they fall within the of practice, has been identified with the lex mercatoria or law mer- lex arbitrii of Swiss Law. That is so regardless of the actual location of chant, a venerable source of law that is said to form the foundation of a CAS hearing and award because the seat of the CAS for legal pur- international commercial practice and commercial arbitration. poses is always in Lausanne, Switzerland. Consequently, the Swiss Leaving aside the jurisprudential questions about the status of the lex Federal Act on Private International Law governs issues within its mercatoria, the association of the two terms may be somewhat competence in all CAS arbitrations even when one of more of the par- strained. On one hand, the lex mercatoria, having developed from ties is domiciled or has its registered office outside Switzerland. commercial practice over hundreds of years, enjoys a cachet of cus- What about arbitral pronouncements on the human rights of ath- tom. Also, the lex mercatoria extends comprehensively to internation- letes or on labor, anti-trust (competition) and other regulatory law? al commercial activity and institutions. Moreover, the lex mercatoria They, too, would appear to fall outside the scope of the lex sportiva, enjoys recognition in both private and public sectors, having a claim as would any awards deviating from the requirements of mandatory in some legal systems to authority as public law.