Legal Aspects of the Players' Agents Licensing System in Football (original) (raw)
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Agents in the sporting field: a law and economics perspective
The International Sports Law Journal
While agents have been active in the sporting field since the late 1800s, sports agents and their activities have grown in prominence only in more recent times, particularly as a result of typically adverse headlines. Agents are generally considered to be necessary (or some might say a necessary evil) for the sporting industry, in the representation of sportsmen and women, the consultation of sports clubs and franchises, or the facilitation of employment contracts and transfer deals. In contrast to players and clubs (not to mention sports federations and governing bodies), however, sports agents are not engaged in sporting endeavour. Rather, the essence of their role is an economic one for the provision of services. This peripheral position of sports agents implies that their interests are likely to be quite different from those of other stakeholders in the sports industry – but it also gives rise to a significant regulatory conundrum. This conundrum has become especially apparent i...
The international sports law journal, 2018
Legal systems should be certain so that rules can be easily enforced and the law's subjects can operate with certitude. And yet, in the world of professional football, the legal validity of various regulatory rules governing the financial aspects of professional football has repeatedly been called into question. Legal challenges, ventilated through various national and international fora, call into question the stability of financial rules created by football's governing bodies, and, prima facie, undermine the ability of the game's rule making bodies to create financial rules which engender the requisite degree of legal certainty. This paper is the second in a two-part series. Part One consisted of case studies on legal challenges to financial regulatory rules (Financial Fair Play, the prohibition on third party ownership, and aspects of the market in player transfers). This Part Two critically assesses the underlying themes to those challenges, reflecting on the difficulties in making financial rules in a system of conditional autonomy; the uncertainty precipitated by using arbitration as a preferred-or as the case may be, mandatory-system of dispute resolution; and the intractability of challenges brought by actors outside of governing bodies' jurisdictional ambit. It is argued that this confluence of factors has put football's governing bodies in a 'Corridor of Uncertainty' in respect of their ability to regulate the financial aspects of the game. In this 'Corridor of Uncertainty', governing bodies' financial rules are inexorably prone to legal challenges to which a legal, political or regulatory response must be produced. Keywords FFP Á Financial fair play Á TPO Á Third party ownership Á Transfers Á Financial regulation Á Football Á Disputes Á CAS Á Court of arbitration for sport Á Certainty Á Autonomy
International Sports Law Journal, 2017
Contracts involving sports matters, such as the participation of an athlete in an international sports competition, would normally have a clause submitting disputes to arbitration under the rules of the Court of Arbitration for Sports. As a result, in international sports disputes, the subject matter of disputes has been predominantly decided by a private tribunal. In making such decisions, the Court of Arbitration of Sports has been interpreting and applying the rules established by sports governing bodies. Consequently, in its 30 years of existence, the Court of Arbitration for Sports has produced a rich jurisprudence regarding sports disputes. Such body of case law, combined with the rules of the sports governing bodies, has created what today is called a lex sportiva. Hence, this paper aims at analysing the concept of the lex sportiva to trace a parallel to its closest source of transnational law, the lex mercatoria. From that, following the principle of party autonomy, it will be argued if lex sportiva is already the governing law in some sports-related contracts or if it is desirable, whether lex sportiva can become the governing law to a contract in the same manner that today lex mercatoria can be the parties’ choice of law in a contract.
This disserta*on analyses the structure of the FFP, and their rela*onship with EU law. It explores several notable challenges of EU compa*bility, as well as the Commission's reac*ons. The FFP represents UEFA's response to decades of irresponsible overspending in football. The disserta*on examines the regula*ons themselves, primarily how the break-even analysis is calculated by ensuring that clubs' relevant expenses do not exceed the relevant income over the three-year monitoring period. The devia*on allowance, as well as the wide criteria for what cons*tutes 'income', represent beneficial efforts to facilitate the applica*on of the regime. To understand their implementa*on, reference is made to the enforcement structure of the FFP, focusing on the procedure of the CFCB's inves*gatory and adjudicatory chambers, including some cases decided by the la0er. A number of landmark cases of the CAS were examined, highligh*ng the appeal process from the CFCB. Sport law's rela*onship with EU law is another focus of this work. Cases such as Bosman, Meca-Medina, and Walrave are referred to in order to explain how EU law became prevalent over sports law, specifically, those regula*ons made by spor*ng federa*ons, like the FFP. In order to operate lawfully, the FFP must conform with EU law. The disserta*on examines Ar*cle 101 TFEU's three limbs, showing how the FFP seemingly breaches it due to a restric*on of investments. Reference is also made to the excep*ons to this ar*cle, found in 101(3) and Wouters, showing that the regula*ons do not enjoy their protec*on. These findings conclude that the FFP are problema*c visa -vis EU law, and that there are more propor*onate approaches which could be adopted to reach their aims among European clubs. Their unencumbered opera*on arises out of UEFA and the EU's cordial rela*onship.
The international sports law journal, 2018
Legal systems should be certain so that rules can be easily enforced and the law's subjects can operate with certitude. And yet, in the world of professional football, the legal validity of various regulatory rules governing the financial aspects of professional football has repeatedly been called into question. Legal challenges, ventilated through various national and international fora, call into question the stability of financial rules created by football's governing bodies and, prima facie, undermine the ability of the game's rule making bodies to create financial rules which engender the requisite degree of legal certainty. This paper is the first in a two-part series examining the framework within which financial regulatory rules are made and the manifestations of the peculiarities of that framework. This Part One is composed of three case studies on formal legal challenges-to Financial Fair Play, to the prohibition on third party ownership, and aspects of the market in player transfers-each of which involved disputes centred on financial regulatory rules. Part Two of this series will build upon the themes identified in Part One. Considering the structural factors underlying the legal challenges described. It will be argued that a confluence of factors have put football's governing bodies in a 'Corridor of Uncertainty' in respect of their ability to regulate the financial aspects of the game. In this 'Corridor of Uncertainty', governing bodies' financial rules are inexorably prone to legal challenges to which a legal, political or regulatory response must be produced. Keywords FFP Á Financial Fair Play Á TPO Á Third Party Ownership Á Transfers Á Financial regulation Á Football Á Disputes Á CAS Á Court of Arbitration for Sport Bingham goes on to cite Lord Mansfield's judgment in Hamilton v. Mendes from 1761, in which it was stated that, 'The daily negotiations and property of merchants ought
The International Sports Law Journal
This paper was first presented at the International Sports Law Conference in The Hague in October 2018. It summarises the author's work and wider research on the introduction of new proposals for the regulation of football intermediaries (a term which the author finds unworkable and unorthodox). The author's research critically analyses the current regulatory framework and identifies the elements that form the basis for the inadequacy and ineffectiveness of the regulations currently in force. With the use of case studies and examples drawn from the author's private practice, recommendations are produced for new regulations that would promote transparency, equality and consistency. The author concludes that this can only be achieved via a blending of self-regulation and external regulation at an international setting.
PODIUM Sport, Leisure and Tourism Review
Recent sport professionalization demanded governmental regulation on the overall sport competition environment. This work intends to clarify and illustrate some important aspects of the European Union Competition Law that are applied to sport organizations and for managers, showing how some important cases have shaped sport practices. Specifically, the current articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) are the focus of this analysis. In brief, the Courts are now supporting their decisions about sport competition issues based not only on the TFEU, but also on the White Paper of Sport and referential cases. Above all, as a consequence of the Meca-Medina case, targeting to evaluate whether a rule adopted by a sport association infringes articles 101 and 102, a methodological approach was defined: Wouters steps (European Commission, 2007). Sports athletes, managers and institutions should assess if their entities are under the umbrella of the European Union Competition Law, taking into account the Wouters steps and the elements of the article 101 (3). Surely, any sport rule in the EU needs to observe the necessity of legitimate objectives and the proportionality of the actions in order to achieve these goals. The case-by-case Court of Justice approach of analysis was chosen as the best option, after all, general exemptions or applications could not take into consideration the specificities of the sport phenomenon. Additionally, sport managers should always foresee the effects of their rules and decisions on the sport industry, in terms of restricting or distorting competition.