Dr. Anastasios Dr. Anastasios Kaburakis Kaburakis A Comparative Analysis of Player A Comparative Analysis of Player Restraints and Transfer Rules in Restraints and Transfer Rules in European Union and United States European Union and United States Professional and Amateur Sports Professional and Amateur Sports 2007 NSLI FALL CONFERENCE 2007 NSLI FALL CONFERENCE The Increasing Globalization of The Increasing Globalization of Sports: Olympic, International and Sports: Olympic, International and Comparative Law & Business Issues Comparative Law & Business Issues Comparative Analysis of Sports Comparative Analysis of Sports League Structure, Governance and League Structure, Governance and Player Restraints Conference Panel Player Restraints Conference Panel
Transcript
Dr. Anastasios KaburakisDr. Anastasios Kaburakis
A Comparative Analysis of Player Restraints A Comparative Analysis of Player Restraints and Transfer Rules in European Union and and Transfer Rules in European Union and
United States Professional and Amateur United States Professional and Amateur Sports Sports
2007 NSLI FALL CONFERENCE2007 NSLI FALL CONFERENCE
The Increasing Globalization of Sports: The Increasing Globalization of Sports: Olympic, International and Comparative Law & Olympic, International and Comparative Law &
Business IssuesBusiness Issues
Comparative Analysis of Sports Comparative Analysis of Sports League Structure, Governance and League Structure, Governance and Player Restraints Conference PanelPlayer Restraints Conference Panel
US and EU Competition and Labor US and EU Competition and Labor Law Law
Starting Point:Starting Point:
US Sport and Law Governing Competition
Antitrust Law 1890 Sherman Antitrust Act (SAA)
15 U.S.C. §§ 1-7 SAA §1: Agreements in restraint of trade
(Per Se v. Rule of Reason analysis)
SAA §2: Unlawful monopolization Willful exploitation of dominant market
power or attempt to gain monopoly power via unlawful means
US Sport and Law Governing Competition
Relevant Case Law – Antitrust Federal Baseball Club of Baltimore v. National League of Professional Baseball
Clubs 259 U.S. 200 (1922) Dept. of Justice v. NFL 116 F. Supp. 319 (1953) US v. NFL 196 F. Supp. 445 (1961) AFL v. NFL 323 F 2d 124 (4th Cir. 1963) Philadelphia World Hockey v. Philadelphia Hockey Club 351 F. Supp. 462 (E.D. Pa.
1972) San Francisco Seals v. NHL 379 F. Supp. 966 (1974) Bowman v. NFL 402 F. Supp. (D. Minn. 1975) Robertson v. NBA 389 F. Supp. 867 (S.D.N.Y. 1975) NASL v. NFL 670 F. 2d 1249 (1982) LA Memorial Coliseum Commission v. NFL 469 US 990 (1984) Mid-South Grizzlies v. NFL 467 US 1225 (1984) NCAA v. Board of Regents 468 U.S. 85 (1984) NBA v. SDC 484 US 960 (1987) USFL v. NFL 842 F. 2d. 1335 (1988) Piazza v. MLB 831 F. Supp. 420 (E.D. Pa. 1993) Sullivan v. NFL 115 S. Ct. 1252 (1995) Law v. NCAA 902 F. Supp. 1394 (1998) Fraser v. MLS 97 F. Supp. 2d 13 (2000)
Noted Exemptions from Antitrust Law
1922 Federal Baseball ruling Justice Holmes in dictum ruled baseball
was “not interstate commerce” exempting it from antitrust law
1961 Sport Broadcasting Act Congress enacted the Sports Broadcasting
Act (15 USC Section 1291) Thus, the four major leagues were able to
sign agreements pooling broadcasting rights (“sponsored telecasting”), being exempt from antitrust scrutiny
US Sport and Labor Law Important Aspects of Labor Law
National Labor Relations Act National Labor Relations Board
Collective Bargaining Agreements League rules negotiated under CBA
Statutory Labor Exemptions Clayton Act
(15 USC Sec. 12-27 & 29 USC Sec. 52) Norris-La Guardia Act (29 USC Sec. 101-115) National Labor Relations Act (NLRA)
(29 USC Sec. 141-187) Non-Statutory Labor Exemption
Local Union # 189, Amalgamated Meatcutters & Butchers Workmen of North America, AFL-CIO v. Jewel Tea Company 381 US 676 (1965)
United Mineworkers of America v. Pennington 381 US 657 (1965)
Labor exemption applications Mackey v. NFL,
543 F. 2d 606 (8th Cir. 1976)8 union sponsored players challenged the “Rozelle Rule” – The “Mackey test”The Antitrust exemption could be invoked by a league only when:1. Restraint of trade primarily affected the CBA parties2. Agreement fought to be exempted concerned a
mandatory subject of bargaining3. Agreement was the product of arms length bargainingThe third element was lacking, hence noleague protection via the labor exemption
US Sport and Labor Law
US Sport and Labor Law Relevant Case Law – Labor Relations
Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs 259 U.S. 200 (1922)
Gardella v. Chandler, 79 F.Supp. 260 (S.D.N.Y. 1948) Toolson v. New York Yankees, 346 US 356 (1953) U.S. v. Schubert, 348 US 222 (1955) U.S. v. International Boxing Club, 348 US 236 (1955) Radovich v. NFL, 358 US 445 (1957) International Boxing Club v. US, 358 US 242 (1959) Haywood v. NBA, 401 US 1204 (1971) Flood v. Kuhn, 407 US 258 (1972) Philadelphia World Hockey Club v. Philadelphia Hockey Club, 351 F. Supp. 462 (E.D.P.A. 1972) Robertson v. NBA, 389 F. Supp. 867 (S.D.N.Y. 1975) Kansas City Royals v. MLBPA, 532 F. 2d 615 (8th Cir. 1976) Mackey v. NFL, 543 F. 2d 606 (8th Cir. 1976) McCourt v. California Sports, 600 F. 2d 1193 (6th Cir. 1979) Zimmermann v. NFL, 632 F. Supp. 398 (D.D.C. 1986) Bridgeman v. NBA, 675 F. Supp. 960 (D.N.J. 1987) Wood v. NBA, 809 F. 2d 954 (2d Cir. 1987) Powell v. NFL, 678 F. Supp. 777 (D. Minn. 1988), 930 F. 2d 1293 (8 th Cir. 1989) McNeal v. NFL, 764 F. Supp. 1351 (D. Minn. 1991) White v. NFL, 41 F 3d 402 (8th Cir. 1994) Brown v. Pro Football, 116 S. Ct. 2116 (1996) NBA v. Williams, 857 F. Supp. 1069 (S.D.N.Y. 1994), 116 S. Ct. 2546 (1996) Curt Flood Act (1998) 15 USC Sec. 27 (a) MLB v. Crist, 331 F 3d 1177 (11th Cir. 2003) Clarett v. NFL, 369 F.3d 124 (2nd Cir. 2004)
US Competition & Labor Law Summary
• In the “amateur” section of US sport, the NCAA has enjoyed relief from antitrust scrutiny (w/ 2 noted exceptions)
• Congressional intervention (e.g. SBA 1961, CFA 1998)
• Practices that would otherwise be declared inherently anti-competitive find a sporting rationale and pass antitrust muster (e.g. broadcasting restrictions, draft systems, salary caps, luxury tax)
US Competition & Labor Law Summary
• Several major sports leagues’ practices have been declared violations of antitrust law (i.e. cross-ownership restrictions, relocation restrictions, transfer windows, and acquisitions deadlines) under SAA §1. SAA § 2 claims in regard to monopolization and the misuse of a dominant position have been harder to prove
• NLRA principles demand bona fide CBA bargaining – Courts give employers the benefit of the doubt
• “Mackey test” // NLRA employers’ obligations → Players’ unions may still pursue the negation of a restrictive practice; as a last resort they always have the “nuclear option” of union decertification
European Union
Competition and Labor Law application in sportCompetition and Labor Law application in sport
EU Competition Law application in sport
• EC Treaty [The Treaty establishing the European Community (as amended by the Treaty of Amsterdam)] C 325/35, 12/24/02
• EC Treaty promotes competitive market economy and prevents barriers to integration of the single European market
• Article 3 (g): No competition distortion• Article 81 (1 & 2): Anti-competitive agreements prevention• Article 81 (3): Exceptions for promotion of technical and Article 81 (3): Exceptions for promotion of technical and
economic progress—allowing consumers a fair price economic progress—allowing consumers a fair price (EU–“sui generis” Rule of Reason)(EU–“sui generis” Rule of Reason)
• Article 82: Abuse of dominant position w/i the common Article 82: Abuse of dominant position w/i the common market prevention, insofar as the abuse may affect inter-market prevention, insofar as the abuse may affect inter-member trade member trade
• Article 86 et seq: Allow for State Aid to sport clubs via Article 86 et seq: Allow for State Aid to sport clubs via socio-cultural approachsocio-cultural approach
EU Competition Law application in sport
• The EC Competition Directorate Director General JF Pons (1999) emphasized:– Solidarity, equality, uncertainty of results– Social expectation of top-bottom € distribution– ISFs may regulate and govern € activity– Distinction of EC Competition policy compliance and sport
policy requirements– EC ≠ unjustified restrictive practices of sport orgs. with €
impact // EC accepts practices inherent to the nature of sport, necessary for sport org. and justified
• Pons (1999): Certain sport policies may fall outside the scope of Pons (1999): Certain sport policies may fall outside the scope of Article 81 (1)Article 81 (1)– Game rulesGame rules– Nationality clauses for international competition v. national Nationality clauses for international competition v. national
teamsteams– National quotas (also see UEFA’s “Homegrown Rule” critique)National quotas (also see UEFA’s “Homegrown Rule” critique)– Rules for selection based on objective, non-discriminatory Rules for selection based on objective, non-discriminatory
criteriacriteria– Rules on fixed transfer periodsRules on fixed transfer periods– Rules promoting uncertainty of results, barring other less Rules promoting uncertainty of results, barring other less
restrictive methodsrestrictive methods
EU Competition Law application in sport
• EC v. UEFA (1999-2003) on Champions League Exclusive TV rights bundling – UEFA (2003) instituted new coverage plan and bidding procedure
• EC v. UK Premier League on R. Murdoch’s BSkyB exclusive package
• +Television-Sans-Frontier directive (Article +Television-Sans-Frontier directive (Article 3A): “Important events for society” on free 3A): “Important events for society” on free TVTV
EU Competition Law application in sport
• EC v. FIA (2001): A SGB/SINGO EC v. FIA (2001): A SGB/SINGO needs to separate its regulatory needs to separate its regulatory from its commercial promotions from its commercial promotions function (FIA organizing Formula function (FIA organizing Formula I races “drove out” competing I races “drove out” competing promoters) promoters) NOTENOTE: FI v. Soccer: FI v. Soccer
EU Competition Law application in sport
• EU Commissioner Monti (2001): EC does not care about sporting rules – These are not subject to EU Law; if they are objective, transparent, and nondiscriminatory (OTND) ≠ Anti-Competitive
• ECJ ruled that SGB/SINGOs do not enjoy immunity ECJ ruled that SGB/SINGOs do not enjoy immunity even over the rules of the game; they have to satisfy even over the rules of the game; they have to satisfy OTND criteriaOTND criteria
EU Labor Law application in sport
• EC Treaty [The Treaty establishing the European Community (as amended by the Treaty of Amsterdam)] C 325/35, 12/24/02:
– Article 2 on Community economic activityArticle 2 on Community economic activity– Article 3(c) on abolition of obstacles to Article 3(c) on abolition of obstacles to
freedom of movementfreedom of movement– Article 39 (48) on freedom of movement Article 39 (48) on freedom of movement
and prohibition of nationality-based and prohibition of nationality-based employment discriminationemployment discrimination
Case Law
• Case 36/74 Walrave & Koch vs. Union Cycliste International et al [1974] ECR 1405 (Walrave):– “…the practice of sport is subject to Community
Law, only in so far as it constitutes an economic activity…”
– “…the prohibition on discrimination based on nationality…does not affect the composition of sports teams, in particular national teams…which has nothing to do with economic activity…”
Case Law• Case 13/76 Dona vs. Mantero [1976] ECR 1333
(Dona): – “…Rules or a national practice, even adopted by a sporting
organisation, which limit the right to take part in football matches as professional or semi-professional players solely to the nationals of the state in question, are incompatible with Article 7, and as the case may be, with Article 48 to 51 or 59 to 66 of the Treaty, unless such rules or practice exclude foreign players from participation in certain matches for reasons which are not of an economic nature and context of such matters are thus of sporting interest only.”
• Imprecision in Walrave and Dona led the EC and UEFA (1989) to adopt the “3+2” rule (3 non-nationals and 2 assimilated players)
Case Law• Union Royale Belge des Societes de Football
Association, Royal Club Liegeois, UEFA vs. Bosman, case C-415/93 [1996] ECR 5040 (Bosman):– Article 48 of the EEC Treaty precludes the application of
rules laid down by sporting associations, under which a professional footballer who is a national of one member state may not, on the expiry of his contract with a club, be employed by a club of another member state unless the latter club has paid the former club a transfer, training or development fee
– Article 48 of the EEC precludes the application of rules laid down by sporting associations under which, in matches, in competitions which they organize, football clubs may field only a limited number of professional players who are nationals of other member states
Case Law• ECJ (12/15/1995) in Bosman:
– Transfer rules = Obstruction of free movement• Due to social importance of sport… teams’ balance,
equality, uncertainty of results… recruitment & training of young players are legitimate
• Transfer rules ≠ adequate means for balance• Same aims can be achieved via less restrictive means
(salary cap, redistribution of ticket sales, broadcasting contracts, etc…)
– Nationality clauses = Discriminatory under Article 39 (48) • Render freedom of movement inapplicable• Not pro-competitive (richest clubs + edge)
Case Law
• Advocate General Lenz interpretation of Articles 81 & 82 (ECJ did not examine Competition Law application):– Should be no exemptions on sporting grounds, as
nationality rules prevented free competition for players, thus constituting an agreement sharing sources of supply under Article 81 (1) c
– Transfers were substituting supply and demand principles, thus depriving of competitive opportunity
– No reason for sport labor to fall outside the scope of Article 81 – No CBAs but horizontal agreements between clubs (Competition Law applies) though no abuse of dominant position (Article 82) established
Case Law• Post-Bosman decisions, ECJ’s stare decisis,
verification of new age in EU sport and policy initiatives to control it:– Ballock case, OJC-99/23, Settled out of court– CE 30/12/2002, # 219646, FFBB affaire Malaja, Court
D’Appel for Malaja – C-162/00 Pokrzeptowicz-Meier [2002] ECR 1-1049 – C-438/00, Deutscher Handballbund vs. Maros Kolpak, ECJ
8/5/2003 – C-265/03, Igor Simutenkov v. Abogado del Estado and
• C-176/96, Jyri Lehtonen and Castors Canada Dry Namur-Braine ASBL vs. Fédération Royale Des Sociétés De Basketball ASBL [2000] ECR 2681 (Lehtonen) – Discriminatory transfer windows (NOTE: Differentiation of
EU imports and outside-EU-zone players, i.e. NBA)
• C-51/96 and C-191/97, Christelle Deliege vs. Ligue francophone de judo et disciplines associées ASBL, et al. [2000] ECR 2549 (Deliege) – EC Treaty applies to athletes engaging in commercial
activities, even if they are not per se “professional”– Selection criteria for ISFs and NGBs are inevitable, hence
no unrestricted open entry into international competitions
Policy development
• UEFA’s “Homegrown rule”:– 4 players shall be “locally trained”– Reduced squad size (25)– Local training = Registered w/ club3 years/seasons while 15-21 year-oldBeginning 2006-2007 season
• As often the case with policy initiatives, reactions have been split
• Legal scholarship argues that it would be found in violation of the EC Treaty (Briggs, 2005; Parrish 2005; EurActiv, 2005; Asser Instituut & Lancaster University, 2005)
Policy development
• EC &FIFA/UEFA (2001) agreed on a new elaborate transfer system ≠ FIFPro participation (+club segmentation, protection of youth training, solidarity mechanism, alternative dispute resolution)
In In CAS 2005/A/899 CAS 2005/A/899 (Aris)(Aris)FC Aris Thessaloniki vFC Aris Thessaloniki v FIFA & New Panionios N.F.C.FIFA & New Panionios N.F.C. FIFA acknowledged its FIFA acknowledged its inability to unilaterally inability to unilaterally Enforce its sanctions; Enforce its sanctions; it recommends action toit recommends action toMember federations (Aris, par. 45)Member federations (Aris, par. 45)
…in a nutshell• EC Treaty Articles 3, 81, 82 are applied in sport settings, in
the cases sport is treated as a commercial activity; otherwise there is no sport-specific exemption from EU Competition Laws (v. US antitrust exemptions, CBAs//NLRA, SBA 1961)
• Buttress for the “social, educational, and cultural character and contribution of sport”, EC Treaty Articles 86 et seq. allow for states assuming the burden of clubs in financial hardship
• EC policy, ECJ, or national courts or commissions’ decisions EC policy, ECJ, or national courts or commissions’ decisions control horizontal restraints in sport, promoting the socio-control horizontal restraints in sport, promoting the socio-cultural model, i.e. against exclusive licensing –unless it cultural model, i.e. against exclusive licensing –unless it protects the weaker financially clubs— separating the protects the weaker financially clubs— separating the regulatory from the commercial activity of sports regulatory from the commercial activity of sports organizations, yet allowing for considerable regulatory organizations, yet allowing for considerable regulatory autonomy, provided sport purposes are served in OTND autonomy, provided sport purposes are served in OTND mannermanner
…in a nutshell• Bosman and Post-Bosman cases led to a free sport market
and free sport labor, forestalling transfer and nationality rules in the EU, including labourers originating from trade associations’ countries, according to the recent ECJ decisions extending Article 39’s scope
• no collective bargaining exemptions in EU sport -- sport labor is not treated differently
• Access to sport employment and international competition Access to sport employment and international competition participation opportunities may be controlled by participation opportunities may be controlled by reasonable rules according to Lenz, Monti (2001), and reasonable rules according to Lenz, Monti (2001), and DeliegeDeliege (2000) (2000)
• The conflict between EU law and SINGOs is resolved by The conflict between EU law and SINGOs is resolved by dialogue between the EC and the SINGO, as in the case of dialogue between the EC and the SINGO, as in the case of the new FIFA transfer system (& UEFA Homegrown Rule). the new FIFA transfer system (& UEFA Homegrown Rule). As long as EU Law and EC criteria are met the EC will not As long as EU Law and EC criteria are met the EC will not interveneintervene
Conclusion
• The two often conflicting worlds have more in common than what critics assume
• Recent policy intervention by the respective legislative branch aimed at treating the same problems in both worlds
• EU model is not a “purely” socio-cultural model, as it features much commercialism force of its own, to which policy evolution and the judicial branch attend
Conclusion
• Ironically, considering the popular European fiction of the “socio-cultural” approach, the US sport model allows for more specific exemptions from competition laws at this point of regulatory evolution
• EC Treaty Articles 86 et seq. allow for state intervention practices [“special liquidation” criticized by Dedes (2005)] ≠ US policy (NCAA tax exempt status and public financing of professional sports facilities?)
Conclusion
• Both US Congress and EC intervene in sport matters
• Considering commercializing forces existing in contemporary sport, political intervention appears crucial for preservation of important principles and traditional sporting values
• Political support has a place in sport; the latter needs the former.
Discussion
• Global commercialization of sport creating the need for a new law and policy reality in the sport industry?
Discussion
• Antitrust – Competition Law exemptions…
• Purpose?
• Need?
• Scope?
• Compromise (EU?)
Would the “socio-cultural” model be served better viaWould the “socio-cultural” model be served better viacareful application of EU Law?careful application of EU Law?Should we segment the business side of sport (+ exemptions)Should we segment the business side of sport (+ exemptions)from the “socio-cultural” side?from the “socio-cultural” side?
Discussion
• Thoughts on EC Treaty Articles 86 et seq. and the practice of special liquidation (states “saving” clubs from extinction)
• Thoughts on practice of political intervention
Discussion
• Meca Medina, Piau, and Oulmers (pending)
– Latest ECJ cases
– Application of Competition Law, Articles 81 and 82
(+Art. 39/49)
Transfers
• 1891 – English Soccer clubs recouping training cost, controlling player mobility, promoting competitive balance
• Transfer windows – Competition aspect?
• Transfer fees U-23 (for training incurred U-21)
Transfers
• UEFA report 1973:“It will come a moment in which individuals will start to claim their rights under EC law for free movement and employment. The professional players will then have a tendency to invoke free movement to attack the international structure of football” (UEFA 1973: 5)
• After Bosman (1995) the nationality quotas were lifted immediately, however the transfer system entered into long series of negotiations b/t the EC and FIFA/UEFA (frictions b/t the two)
• FIFA & FIFPro v UEFA • 3/2001 FIFA/UEFA agreement w/ EC (w/o FIFPro)• 7/2005 New FIFA Transfers and Status of Players rules
Players Restraints
• Rights of acquisition (option rights) – Enable a club to acquire a player w/i set time by
paying stipulated transfer fee
• Rights of preference (preemption rights) – Enable a club to acquire a player only if the club that
holds the rights decides to transfer the player. May allow interested club to obtain a preference over other clubs at point of decision by the transferring club. The practice requires more than matching rival offers; other conditions apply (see Real Madrid & F.C. Barcelona supplemental transfer fee)
Players Restraints
• Non-EU nationals may benefit from non-discrimination treaties– Association and trade agreements (Kolpak
and Simutenkov)– Cotonou agreement (ACP countries)
Players Restraints
• UEFA Homegrown Rule (off: “Locally Trained Players”)• EC dismissed early post-Bosman idea (4/96)• EC and EP sympathetic to the idea (2005)• 8 players shall be “locally trained” (08-09; 6 for 07-08)• 4 “Club trained” + 4 “Association trained” (3+3 for 07-08)• “Club trained” = Registered w/ club for 3+ years/seasons
while 15-21• “Association trained” = As above registration by club OR
by other clubs affiliated to the same Association• Reduced squad size (25)• No mention of nationality
Players Restraints
• Fixed-Term Contracts• Bosman creating new transfer system• ISFs decide on particular length
– FIBA (H3.4.3: 1-4 years)• FIBA Europe (94.2.3: 1 year min.)
– FIFA (Transfer Rules Art. 18.2: 1-5 years)• Under 18 (3 years max.)
– IIHF (11.3: spec. term)
• Termination for just (and sporting just) cause
Players Restraints… but also benefits
• Tax exemptions (for national team and club play)
• Preferential treatment for athletes U-18 with participation on national teams and nationally competitive clubs re: University entrance examinations
• Civil service, government, sport administration positions, and exclusive licenses to operate sport betting offices
• Immigration Law exemptions
Greek Sport Law
• Pro sport contract duration: ½ - 5 years• 18th birthday + obligation to sign with the current club a
1-3 years contract; the player can agree to extend the duration to 5 years
• Agents can sign up to 20% of players on each team of the particular league
• “National team service is the utmost obligation of the athletes…”
– Sanctions involve competition ban for national team and club games, as well as termination of various benefits received from the state.
• Compelling reasons for U-18 transfer:– Club solvency, lack of BoD, lack of financial support for athlete, “mental and
psychological separation” b/t club and athlete, lack of monitoring athlete progress, lack of medical insurance coverage and physical fitness documentation
ν. 2725/1999 (ΦΕΚ 121 Α΄)
FIBA
• Minor (but key) differences b/t FIBA and FIBA Europe rules (e.g. first pro contract duration)
• Noted restraints– No international transfer U-18; exceptional cases
referred to Secretary General of FIBA– Mandatory first pro contract procedure, favoring
development club – Compensation system upon player refusal– Redistribution of sum by Federation to development
club(s)– Option of FIBA to decide on transfer fee amount
FIBA
• Noted restraints– Licensing and Letter of Clearance restrictions– National team – related restraints:
• Obligation of club to release the player “without any financial indemnity” and cover player’s insurance
– FIBA Europe forecasts: Federations need to insure player contracts with the club as the beneficiary
• Obligation of player to reply affirmatively• Sanctions for club and player (FIBA H.3.6.3.4; FIBA Europe
102)
• FIBA Europe – ULEB entanglement
FIBA—NBA
• 3/14/1997 FIBA—NBA agreement
• FIBA Europe/ULEB calls for amendments
• Annual renewal
• Purposes:– Honor valid contracts on both sides – Ensure compensation for US players on
FIBA teams– Introduce binding and final arbitration
FIBA—NBA
• Agreement specifics:– “Player Contract = written agreement for a specified term
and for a specified salary or other compensation.”– Licensing system, Letters of Clearance, mutual requests re:
contract status– “Any disputes… shall be resolved finally and conclusively
by an International Arbitrator”– Mutual best efforts deterring interference w/ contract– But for date conflicts, NBA shall permit participation on
national teams, and will not impede directly or indirectly such participation. NBA will not request any fees from player or Federation, except reasonable and adequate insurance coverage
FIFA
• Recent change of national teams’ eligibility requirement for international competition in favor of citizenship
• Obligation of clubs to release players for national teams’ matches, w/o compensation/insurance coverage (Transfer Rules Annex 1, Art. 1-3)
• “As a general rule, every player… is obliged to respond affirmatively” *
FIFA & Oulmers• C-243/06 Charleroi & G-14 Group v FIFA
(Oulmers)• Belgian Commercial Court referred Q to ECJ:
– Do obligations of clubs to release players w/o compensation and the
– Unilateral and binding determination of international matches calendar
– Constitute unlawful restrictions of competition– Abuses of a dominant position or– Obstacles to the exercise of fundamental freedoms
(per EC Treaty Art. 39, 49, 81, and 82)?
FIFA & Oulmers
• Charleroi lost the services of Oulmers after injuries sustained during international competition with the national team of Morocco
• G14 claiming €860mil. in various damages from FIFA (rejected by the Belgian Court)
• A year and a week ago FIFA’s lead counsel, Heinz Tännler, observed that FIFA might consider establishing an insurance and compensation fund for international players (criticized due to time constraints and unilateral level of action by FIFA v including clubs in the decision-making process)
• The matches calendar issue was not addressed
FIFA & Oulmers
• UEFA Strategy included FIFPro and EPFL
• EC White Paper on Sport + concern about financial flow during transfers; posing the concept of an information and verification system to control flow, leaving the transactions portion to the parties; could be run by ISFs or NGBs.
FIFA
• Contract duration: 1 season – 5 years, except as permitted by national law (Transfer Rules Art. 18.2)– Under 18 (3 years max.)– No “tapping up”– No unilateral termination but for:
• Just Cause* • Sporting Just Cause** (established
professional… appeared in less than 10% of official matches… 15 days after end of season)
FIFA
• The validity of a contract may not be made subject to a positive medical examination and/or the granting of a work permit (Transfer Rules Art. 18.4)
• “Protected Period” (PP) significance:– Sporting sanctions for breach w/o cause w/i PP– No sporting sanctions for breach w/o cause post-PP
• Breach w/o cause results in compensation• DRC/CAS decide on compensation for breach,
covering all benefits, including additional compensation… up to six monthly salaries
FIFA – The Transfer system
• International Transfers U-18 exceptions:– Non-athletically related parental move– Move w/i EU/EEA when 16-18, providing for
• Highest quality athletic training• Academic and/or vocational education• “Best possible” living conditions• Documentation with National Federation
– Living close to foreign club (50-50-100 rule)
FIFA – The Transfer system
• Training Compensation payable:– When player signs first pro contract– On each transfer b/t different
Associations’ clubs until 23– For training incurred U-21, unless:
• Training terminated before 21 in which case– Amount payable calculated b/t 12-year of training
FIFA – The Transfer system
• Training compensation is not due upon:– Unilateral club termination w/o just cause– Transfer to Category 4 club– Reacquisition of amateur status
• First pro contract involves training compensation for all clubs since age 12
• Subsequent transfers compensate last club for “total time effectively trained”
FIFA – The Transfer system
• Training costs are set for each Association club category (up to 4)
• Costs correspond to amount needed to train each player annually, multiplied by an avg. player factor (amateurs/pros rate)
• Lists updated annually• Costs involved “as if the New Club
trained the player itself” • 12-15 training costs = Category 4 clubs
FIFA – The Transfer system
• Solidarity mechanism• 5% of total compensation paid to
former club – excluding training compensation – will be distributed by new club to training and educating club(s) (12-23)– 12-15: each receiving 5% of total– 16-23: each receiving 10% of total
• No age restriction for solidarity funds
IIHF—NHL • 2007 NHL Draft featured No1 and 2 US picks (1st) • Appx. 30% of NHL players = Euros• IIHF & NHL cooperation (-Russia) for 12 years• 7/12/2007 New four-year transfers agreement • Deadlines for draftees and non-draftees• IIHF players w/o contract may sign as NHL free agents• NHL pays development fee of $9mil. for the first 45 IIHF players
drafted ($200K per add. Player – NHL Draft 7 rounds) • NHL + additional $100K late signing window fee • NHL + $ 50-100K compensation for IIHF players <30 games (funds
used for players outside per se scope, i.e. US and CAN Junior Clubs NHL)
• Release for 2010 Olympics and World Champs.• Russian risk… NHL teams cannot acquire Russians under contract
but can sign free agents (Russian Federal Sports Law on Transfers v. Labor Law + ADR problems)
IIHF—NHL
• Yashin, Ovechkin, Malkin cases• Yashin lost in arbitration and returned to NHL• Ovechkin and Malkin were allowed to compete
for their NHL teams• Russian teams ≠ injunction (+antitrust, breach
of contract, arbitration agreement, tortuous interference claims)
• NHL + Russian Labor Law (termination + 2 weeks’ notice) + Duress prior to signing
MLB—Puro YakyuThe Posting System
• The Posting System in MLB developed as a result of the Hideo Nomo case (retired from Japan and played for the LA Dodgers)
• Since 1999 inception, 13 Japanese players were posted • Noted contracts signed:
• MLB club may discuss posting with agent (Nov-Mar)• Player requests and Japanese club posts on list• Commissioner notifies MLB clubs of posted players• MLB clubs submit sealed bids w/i 4 days• Commissioner notifies Japanese club of highest bid w/o source• Japanese club can accept or reject bid (player retained and can be re-posted next
season) • Upon acceptance by player (w/i posting period) Japanese club receives funds• Upon rejection by player rights are retained by Japanese club
Posting v. FIFA Transfers
• Arguably keeps MLB bids lower v. open and public process
• Unilateral v. Multilateral• Narrow v. broad scope• US-JAP only v. EU/EEA/CAP• Limited v. Extensive freedom of
movement• $centric v. socio-cultural consideration
(infrastructure, youth training, solidarity)
US Amateur sector international transfersUS Amateur sector international transfersISAs – NCAAISAs – NCAA
• Not a lot of research (Ridinger, 1998; Ridinger & Pastore, 2000, 2001; Kaburakis, 2005; Popp, 2007)
• Transition to a different system of governance poses problems, especially in the case of International Student-Athletes (ISAs) recruited by NCAA DI institutions
• NCAA DI Amateurism conflicting with federalized club-based “pyramid” model
• Some litigation (Howard v. NCAA, 510 F. 2d 213, 1975; Buckton v. NCAA, 366 F. Supp. 1152, 1973; NCAA v. Lasege and University of Louisville, 53 S.W.3d 77, S. Ct. Ky. 2001; NCAA v. Yeo, 171 S.W.3d 863, 48 Tex. Sup. J. 1016, 2005)
• Significant policy progress in the last five years re: balance of NCAA constitutional principles (Inst. Control, Comp. Equity, SA Welfare)
• Amateurism Clearinghouse and SA Reinstatement contribution
US Amateur sector international transfersUS Amateur sector international transfersISAs – HSAAs, Prep SchoolsISAs – HSAAs, Prep Schools
• ISAs in US HS, prep schools, and Immigration/Administrative Law extensions have not been covered in legal and policy scholarship
• Much like NCAA cases, most cases have not found a right to participate (education not extending to extracurricular activities) with some noted exceptions
• In exceptional cases ISAs will successfully challenge HSAAs decisions that render them ineligible*
• Dept. of State, CSIET, DHS, USCIS policies directly affecting ISAs transition to both public HS and private prep schools (the latter distributing SEVIS docs for visas to talented athletes)
Conclusion
• The EU is currently (12 years post-Bosman) experiencing what the US did in the 50-75 years following Federal Baseball…
• Trying to balance a traditionally conservative approach to sport policy, allowing for self-regulation of sport by ISFs, preserving the pyramid, etc. with a new liberal economic and labor reality in the EU
• If an exemption for several aspects of the sport sector were to occur, what would it mean?– The US provides us with valuable lessons– Judicial and Legislative exemptions would defeat their purpose
of protecting sport development, w/o controls such as salary caps, drafts, competitive balance mechanisms, redistribution of funds, and important labor considerations ≈ NLRA//CBAs
– Particularly for EU sport, dialogue and compromise=imperative
Conclusion
• Sport per se regulations and restraints may still pass EC and ECJ muster; the scope and means will determine outcome
• ECJ will not need to “legislate from the bench”, provided ISFs follow the path of compromise and flexibility; w/o club participation there could be no (fair) EU sport policy
• Theoretically, in Oulmers the ECJ could side with the G-14 (≈ Piau, re: Application of Comp. Law, dominant position by FIFA as an association of undertakings); the calendar may change, but international comps. and representation will not; the ECJ will not provide clubs with € and insurance coverage, FIFA & G14 will
• There is a lot of work to be done by EU MS legislatures (Piau, Oulmers, Placanica, Articles 86 et seq. state interventions…)
Two Greek CentsTwo Greek Cents
• FIFA Transfer system– “Protected Period” serving its purposes? – FIFPro & UEFA (or the G14 if Oulmers leads to a
new model for the Champions’ League*) need to pursue a CBA
– Considerations promoting national interests and local talent arguably have no place in 21st century integrated international sport; if the US pro leagues do not impose nationality-based criteria, we should not either… The better talent needs to be supported. Local talent will always be cheaper. The “Home-Grown” rule is an eloquent and intelligent way to postpone the unavoidable… It’s one world of sport.
Changes that may be in orderChanges that may be in order
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• Age discrimination issues should be addressed • Minimum and maximum length contracts are there for a
reason. 4-5 years max OK; w/o a CBA in place clubs need to be kept at bay; minors’ contracts status (FIFA’s 3-year limit appears reasonable) should be monitored and player benefits’ provisions enforced
• Termination due to lack of club solvency • “Sporting just cause” termination… Impressive
deviation from labor norm…• Other preferential benefits and exemptions may need
to be revisited (tax and immigration provisions, civil service and governmental appointments, educational exceptions)
Changes that may be in orderChanges that may be in order
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• FIBA’s compensation and U-18 international transfers’ system needs an objective adjudicator
• FIBA-Europe and ULEB – Relationship needs clarification
• FIBA-NBA agreement – Time to update (WNBA season-FIBA Worlds conflict, arbitration switch in favor of CAS, omit “other compensation” etc.)
• FIBA’s and FIFA’s club release policies and players obligations to respond in the affirmative needn’t be posed herein for amendment…
Changes that may be in orderChanges that may be in order
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• FIBA & FIFA need more staff, their administrative review committees and dispute resolution panels need a form of a Clearinghouse
• Strictly enforce sanctions (sporting and damages) and educate minor clubs’ administrators re: contractual obligations and budgetary planning
• Distinguish b/t trades and unilateral breaches (revisit legal fiction of signing club culpability, i.e. reverse BoP); make trades conditional
Changes that may be in orderChanges that may be in order
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• FIFA Transfer system– U-18 international transfers provisions OK– Compensation system unconvincing (subjective
clubs’ classification system, composition of annual lists, 12-15 equated to level 4 clubs, age discrimination (±23), defers to NFs for local transfers)
– If kept in place, fair treatment of all clubs (developing and ensuing purchasing clubs) OK
• Solidarity payments appear to be balanced and EU Law abiding; need to extend to NFs
Changes that may be in orderChanges that may be in order
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• NHL–IIHF agreement + Russian ratification (clubs’ and players’ benefit; Russian labor law re: contracts termination and Fed. Sports Law amendments)
• NHL may wish to re-negotiate paying less for later rounds’ picks; NHL may further benefit from amending portions referring to players <30 games
• MLB and UEFA clubs’ “sweat shops”? UN and EU human and children’s rights accords need enforcement
• International sports academies, educational, cultural and athletic programs exchange are outstanding avenues promoting pluralism, respect of differences, research of problems and feasible solutions. Colleagues can achieve the same purposes through collaborative efforts such as this Conference, so…
Changes that may be in orderChanges that may be in order
