Tag Archives: FIFA

What the global ban on Third Party Ownership (TPO) means for football?

December 8, 2015

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By Joe Nelson – Staffordshire University, BA Sports Journalism Student

Following FIFA’s worldwide ban of Third Party Ownership (TPO) on professional footballer’s contracts earlier this year, it is hoped that football clubs across the globe will now be urged to invest more time into their players, nurturing their well-being and talents to procure better deals for all parties involved.

The new law, introduced in May 2015 by FIFA, put forward by FIFPRO (The Professional Football Players Union) received huge backing, including the likes of Michel Platini, who had likened TPO to ‘slavery’.   Although currently suspended from footballing activity, at the time, Platini explained in a UEFA statement how young players are vulnerable and could be exploited using TPO: “UEFA and FIFPRO therefore call on the European Commission to investigate the practice of third-party ownership and to fully endorse FIFA’s decision to prohibit such arrangements.”

A study in 2014 by KPMG showed that 90% of player’s economic rights in South America were partly owned by third party investors. TPO gained mass coverage when it was announced that Santos, a Brazilian football club would only receive €17.1 Million from the superstar, Neymar’s transfer to Barcelona, where €40 went to N&N, a company owned by Neymar’s parents.

It was also found by audit firm, KPMG, that investors and ‘third parties’ owned stakes in the contracts of up to 1100 professional footballers in Europe. For example, world class talent such as Radamel Falcao has been in the spotlight over the dealings, as two of his previous clubs (Atletico Madrid and Porto) have been found guilty of selling a percentage of their player’s contracts to raise funds. Porto, the Portuguese giants had previously been linked with other TPO dealings, and another recent study showed that as much as 36% of professional football players in Portugal were co-owned by third-party. Most recently publicised was Sporting Lisbon’s William Carvalho, whose transfer to Arsenal was said to have broken down due to the ownership problems.

The first breach in the new law was made by second division Belgian club, Seraing United, who failed in their appeal to FIFA’s ban in court in July 2015. The club have been banned from signing players for two years and fined 150,000 Swiss francs after agreeing to third-party ownership deals. FIFA welcomed this legal win as they stated it was “Indispensable for preserving clubs.” FIFA’s executive committee agreed to the ban in May following the campaign by UEFA and FIFPRO.

FIFA have agreed, due to the vast quantity of players involved in third-party ownership that they cannot prosecute each club, as there will be a natural ‘transitional period’, which may cause unrest within numerous leagues due to the nature of the proposal. Where one team may be severely punished, another club from the same league may not be investigated as deeply, which could cause unrest and numerous cases being appealed. For instance, if FIFA had simply cut all ties, expressing that all third party owners must be bought out immediately, it would have made for a far more straightforward command and consequence: You buy out the third parties, or pay a severe fine and be given a transfer embargo.

FIFA have announced that any deals made before 2015 will be allowed to expire under the current circumstances, and any made between January 1st and April 30th will be subject to a maximum one year time limit.

However, any new TPO deals agreed will be punished immediately, which is explained in more depth here. This ‘transitional period’ means that numerous transfers will still require buying out a ‘third party’ in the coming months due to the clauses still within the contracts. For example, recent Premier League acquisitions such as Eliaquim Mangala, Lazar Markovic and Marcus Rojo all involved an external source receiving funds for the transfers, along with the players’ previous clubs.

Inquisitions into TPO in English football is not a new concept. The Kia Joorabchian case brought a lot of light to the situation nearly ten years ago. In that instance, the  problem arose after Joorabchian was said to have represented four separate companies who owned shares in the Argentinian stars, Carlos Tevez and Javier Mascherano during their moves to West Ham United from Corinthians in 2006 (although Joorabchian has publicly declined to discuss the details of Tevez’s ownership and his buying, loaning and selling of the player, citing confidentiality agreements). The Premier League did however fine West Ham a record £5.5 million, and took steps to outlaw TPO in England in 2008.

Joorabchain later claimed that multiple other Premier League clubs use TPO and conceal their involvement in it. He also defended the use of TPO, expressing that it was: “a way of bringing outstanding players to clubs that would not be able to afford them ordinarily.” The Iranian believed it was a ‘South American model’ being used all over Europe.

These third party agreements are understandable, especially with the poorer clubs in the poorer leagues across the world, who need the revenue badly. However, the change means that football clubs should now become more invested in their sides, and not see their players simply as commodities and potential profits.

This process also means that, when the likes of Barcelona or Madrid come swooping in for the next showstopper from South America, they need not fret about complications in the contact and can focus solely on the player’s footballing ability and what he has to offer, along with paying his club 100% of the transfer price. Santos, in this scenario, would receive the full transfer sum for one of their prized assets, thereby giving them more money to invest in their club.

The ban on TPO now makes the game a fairer playing field for all involved, and will produce happier playing professionals across the world. There are still several cases to be sorted across South America and Europe, and we are bound to see numerous cases involving loopholes in the law crop up in the coming months, but it’s another big step towards making football clubs realise they’re still running a team, not a business.

 

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FIFA and IOC suspend Kuwait sport for passing domestic law

November 16, 2015

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By Nickolas Rogic – Thompson Rivers University 2L JD Student

FIFA and the IOC have taken reactionary measures against the Kuwaiti Football Association (KFA) and the Kuwaiti Olympic Association (KOC), respectively. Both organizations have been suspended from international participation. Both actions were undertaken as a response to the Kuwaiti government implementing a new “Sports Law” that, as the world governing bodies state, interfere with the autonomy of the KFA and the KOC. Prohibitions against government interference in a nation’s sporting agencies are included in the Olympic Charter. An observer stated that, if the sports law is not amended, the KFA and the KOC would, in effect, be rendered unable to comply with crucial elements of the Court of Arbitration for Sport and the World Anti-Doping Agency.

Sporting organizations within a country are required to be autonomous from the government. The principle of autonomy when it comes to sporting agencies can trace its way back to the 1894 when Pierre de Coubertin, widely regarded to be the father of the IOC, said that the state would be an unwelcome intruder in what he saw as the pure world of sport, a world where people celebrated their humanity through athletics, away from the “dangerous and imprecise figure” of the state. The principle of autonomy took on new life after World War II, when the IOC and Western nations were loath to see the interference of Communist governments into their sporting organizations. It should be added that the threat of doping figured prominently in the reluctance of the IOC to endorse direct state involvement in sport.

It should also be noted that this is not the first time that the Kuwaiti’s have been suspended from participating in international sport. The Kuwaiti Olympic Committee had been suspended in 2010 but the suspension was lifted in 2012 when Kuwait’s ruler, Sheik Sabah Al Ahmad Al Sabah pledged autonomy for the Committee. In response to the question of why the ruler of the small Gulf state would “go back” on his earlier promise, Sheikh Ahmad Al Fahad Al Sabah, himself a Kuwaiti who heads the global association of national Olympic committees, stated that it was likely due to internal politics, as “the sports minister has lost an election to the president of shooting”.

The fact that the organization of sport can be so tenuous and arbitrary in a country gives credence to the reason that sports authorities require autonomy. Indeed, it is speculated that for many countries without a long history of formal civil society, the danger is that sports organizations may serve as at the personal whim of members of government.
The principle of autonomy of sport then can be seen as a lynchpin of the broader principle against corruption.

Against the backdrop of FIFA’s recent troubles, it may be asked to what extent they have the moral right to levy suspensions against nations for failing to comply with rules. Some have called for an overhaul of the international sporting legal regime in order to combat corruption that is most prevalent in developing countries. Have we drifted too far from de Coubertin’s philosophy of international sport? The case of Kuwait can be seen as a microcosm of the principles under pressure all over the international sporting world.

 

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FIFA: Corruption, Scandal, and Sponsorship: A New Hope

October 12, 2015

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By Tariq Salloum – Thompson Rivers University 2L JD Student

The Fédération Internationale de Football Association (FIFA) is the universe’s largest spanning sporting organization with six confederations and 209 national associations, indeed the FIFA Empire stretches nearly across every corner of the globe and there is no sight of its overwhelming success slowing down anytime soon. However, not all is well in the empire, with charges pending against multiple senior level FIFA level officials for corruption in the United States and the five-time elected President Sepp Blatter facing corruptions charges in Switzerland, and the FIFA ethics board internally investigating its top members – it seems the sponsors have had enough.

As FIFA’s top officials find themselves strife with corruption allegations, major sponsors such as Coca Cola, McDonalds, Budweiser and Visa are done with their wait-and-see approach with FIFA’s top officials, each issuing statements within hours of each other voicing their disdain with FIFA’s top officials including the president, Darth Vade …err – Sepp Blatter. So the question becomes, can our world’s top capitalists do what our world’s top governments can’t do, mainly remove Seth Blatter and his inner circle from the helm of the world’s most beautiful game.

FIFA is estimated to make $177 million a year in marketing deals from top tier sponsors such as Visa, Adidas, Hyundai and Coca-Cola, all of which have recently signed eight year deals worth a cumulative total of $993 million just between these four global corporations. In 2014, a World Cup year, FIFA is estimated to have made $2.1 billion dollars in revenue. Indeed, with all the corporate money that FIFA may lose if its top sponsors live up to their threats and were to withdraw its sponsorship and support if Sepp Blatter was to stay in power is considerable. One would suspect that Sepp Blatter’s fate with FIFA had been sealed.

In the most recent developments, it seems as the arm twisting by the sponsors has worked at least in the interim. As FIFA’s ethics committee has decided to suspend President Seth Blatter and those in his inner circle for at least 90 days, with no details being released until their investigation is finalized due to Articles 41 and 42 of the FIFA code of ethics.

However, Blatter issued a statement through his lawyers saying he was “disappointed” the ethics committee had not followed its own code in allowing him an opportunity to be heard, and claimed the suspension was based on “a misunderstanding of the actions of the attorney general in Switzerland.”

Amidst the united global alliance demanding the resignation of the 79 year old, Blatter still remains defiant and why wouldn’t he be? Up until now he has faced no real consequences for his alleged corruption. In fact, soccer/football and FIFA continue to grow in popularity worldwide year in and year out with no end in sight. No matter what, it seems that the heads of FIFA and the law are going to collide sooner rather than later. Whether it be business law, criminal law, international law, or internal regulations; it’s all sports law at this point and fittingly it seems that the scandals surrounding FIFA are only going to be settled in an adverse arena – albeit a legal arena – nonetheless the score will be settled once and for all … eventually.

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No Rhyme or Reason to Gender Discrimination in Sport

November 23, 2014

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By Danika Heighes – Thompson Rivers University 3L JD Student

Gender discrimination is rampant in sports. Men’s sports are better funded, have more lucrative prizes, greater broadcasting and a greater fan base than women’s sports. This is undeniable and indisputable at both the amateur and professional level both nationally and internationally. However, the international sports community generally does not engage in techniques to combat this gender discrimination. Instead, it is often justified by various sports organizations as a natural by-product of the “higher” intensity of men’s sports.

At 7 pm on November 8th, 2014, Canada and the USA commenced the gold medal game in the 4 Nations Cup, a prestigious women’s hockey tournament which was held in Kamloops, BC, Canada. Also, at 7 pm on November 8th, 2014, the Vancouver Canucks played the Los Angeles Kings in a regular season game in the NHL. Although the Canadian women’s team won the gold medal game in this international tournament, the following day, I heard more about the Canucks 5-1 loss to the Kings. In addition, I would be willing to place a wager that the NHL game was more heavily broadcast as well. For some reason, even in the town that hosted this women’s hockey event, it was less important than a regular season men’s hockey game featuring the nearest team. For whatever reason, the women’s sport fades into the background, and is outshone by its male counterpart. This is the least of the discrimination faced by women in sports.

Currently in Canada, several women’s soccer players have launched a court case against FIFA and the Canadian Soccer Association (CSA) stating that their Section 15(1) right to equality under the Canadian Charter of Rights and Freedoms, has been breached. FIFA and CSA have agreed that the 2015 FIFA Women’s World Cup will be played on artificial turf rather than grass, while the men’s tournaments have only ever been played on grass. According to the women’s soccer players they are being discriminated against, which prima facie, looks to be an accurate allegation, since the international governing body for football/soccer would never have allowed the men’s premier tournament to be played on a new substance on an experimental basis. Nevertheless, FIFA and CSA deny that this decision is meant to discriminate against the women’s tournament.

These are simply two examples of women’s sports facing discrimination in different ways. There are numerous other examples of gender discrimination in the arena of sports that are even more blatant or subtle, yet the international sports community remains unconcerned. Contrast this complacent treatment of gender discrimination in sport to the outrage of the international sports community at the discrimination of a female spectator at a men’s volleyball game in Iran.

On November 2nd, 2014, an Iranian court sentenced a British-Iranian woman, Ghoncheh Ghavami, to a year in prison in Iran, for spreading propaganda against the system. Ghavami, along with several other people attended a peaceful protest calling for equality outside a volleyball stadium and were allegedly beaten and arrested by police. Specifically, the protest demanded that women be allowed to watch a men’s volleyball match between Iran and Italy in June. In essence she will spend a year in prison for being a woman who wished to watch a men’s volleyball game in an oppressive and patriarchal country.

The international sports community is indignant at this excessive gender discrimination, and rightly so. In fact, volleyball’s governing body (FIVB) has called for Ghavami’s release and has written a letter to the President of Iran. Clearly, the sports community is quick to condemn a patriarchal middle-eastern country for its arbitrary cultural custom of disallowing women from watching men’s sporting events, especially in light of the particularly egregious prison sentence this woman is facing. However, they previously did not take issue with this Iranian custom until this incident.

Quite frankly, it seems that the common practice of the international sports community is to turn a blind eye to gender discrimination until it actively pokes them in the eye. Perhaps this incident will incite the international community to look more closely at gender discrimination within their own sporting organizations. Or perhaps, there will be more and more litigation brought forward by individual players in women’s sports alleging gender discrimination on the basis that it violates Article 2 of the Universal Declaration Human Rights, or similar national legislation.

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Dangerous Soccer Celebrations Raise Questions About the Future of Goal Celebration Rules

November 9, 2014

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By Brittany Corwin – Thompson Rivers University 3L JD Student

Late last month, Peter Biaksangzuala, an Indian soccer player from the Mizoram Premier League, celebrated an equalizing goal against Chanmari West FC with several flips. He landed one of these backflips on his head, leaving him unconscious and with severe spinal cord damage. Several days later, on October 19, 2014, Biaksangzuala tragically passed away due to complications from the injury.

In response to Biaksangzuala’s death, FIFA’s Medical Committee warned that it would be pushing for a new rule to ban such celebrations as backflips and somersaults because they pose a safety risk to players.

Currently, “Celebration of a goal” under Law 12, ‘Fouls and Misconduct’ of the ‘Laws of the Games’ currently states:

“While it is permissible for a player to demonstrate his joy when a goal has been scored, the celebration must not be excessive. Reasonable celebrations are allowed, but the practice of choreographed celebrations is not to be encouraged when it results in excessive time-wasting and referees are instructed to intervene in such cases.”

Further, this section of the ‘Law of the Games’ specifically mentions that players should be cautioned for such actions as making provocative or inflammatory gestures, removing one’s shirt or climbing on a perimeter fence, to name a few.

As you can see, the current rules are focused on avoiding excessive celebration and celebration that may be considered as wasting time, unsportsmanlike or inappropriate. There is no indication of safety as a concern relating to players’ methods of goal celebration.

The lack of safety consideration is eye opening, since Biaksangzuala’s tragic death is an indication that goal celebrations can be dangerous and can result in catastrophic outcomes. However, this raises the question of what FIFA should do in response to events like Biaksangzuala’s and prevent them from occurring again.

FIFA stated that it would be issuing a “directive” warning players not to perform such celebrations. Afterwards, the FIFA Medical Committee will then begin writing a proposal to ban celebratory somersaults and backflips. However, Dr. Michel D’Hooghe, chairman of FIFA’s Medical Committee, stated that he presumed the directive would not be effective in ensuring players avoid these actions, but instead he suggested that these celebrations need to be made illegal.

If FIFA makes backflips and somersaults illegal in the celebration of a goal, it would definitely help deter players from performing them and reduce those specific injuries as result. However, what about the other celebratory actions that result in injury but do not involve flips of any sort?

While Biaksangzuala’s celebration tragically resulted in his death, other sports have recently seen injuries during athlete celebrations as well. For example, on October 26, 2014, defensive end Lamarr Houston of the National Football League Chicago Bears suffered a season-ending ACL tear in his right knee while celebrating a sack against the New England Patriots. A month prior in another NFL game, Stephen Tulloch of the Detroit Lions similarly tore his ACL after celebrating a sack against the Green Bay Packers, rendering him unable to play for the year.

These sack celebrations were little more than a couple skips and jumps, which is quite the opposite of Biaksangzuala’s backflip. However, they resulted in significant injuries that left the athletes out for the season or year.

Celebrating one’s success, whether it is a goal or an amazing play at just the right moment, is inherent in the sport. Everyone wants to celebrate their successes and I am certain that in that moment these players do not consider the dangers that may arise from their celebrations.

Celebration is spontaneous and players take their own risk when choosing how to celebrate. It is such an exciting moment for the player, team and his or her fans and thus, making a long list of celebratory actions illegal takes away this spontaneity.

Even if backflips and somersaults were banned, as Dr. D’Hooghe suggested, there are no changes to rules of celebration that could address all the dangers that could possibly result from a player celebrating his or her success. The NFL sack celebrations are a prime example of this.

Celebration is inherent in the game of soccer, and sports in general, and backflips and somersaults should not be made illegal. Players take their own risk when they choose their celebration and while all possible injuries cannot be preventable or foreseeable, these players need to be aware of the possible dangers that could arise. Hopefully, Biaksangzuala’s tragic death will open players’ eyes to the real dangers that can materialize and they will think twice about taking the risk of throwing a flip and opt for a lower risk celebration instead.

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Questions concerning the World Cup in Qatar

October 24, 2014

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By Robert Mazzarolo – Thompson Rivers University 2L JD Student

December 2, 2010, a date that will live in infamy for soccer (football) fans around the world. The Fédération Internationale de Football Association (FIFA) was set to announce the hosts for the 2018 and 2022 World Cups. With the anticipated frontrunner being the United States of America (America) for 2022, the excitement in North America was palpable. The other hopefuls, which included Australia, South Korea, Japan, and Qatar, did not have a chance, or so it was thought. The World Cup would return to America to finish what it had started in 1994. What could be better? Inexplicably, this was not to be the case. As millions of soccer fans watched on their TV screens, FIFA President Sepp Blatter stepped up to the podium to announce the host nation for 2022. He opened the envelope and announced, “The winner, to organize the 2022 FIFA World Cup is, Qatar!” Yes! Wait … Qatar? Where is Qatar? This is where the tragedy of that evening begins.

How could Qatar surpass the United States for the right to host the 2022 World Cup? According to United Nations statistics, the population of Qatar in 2010 was 1.7 million people. Comparatively, the US’s population as of 2010 was 309 million. Less must be more in the eyes of FIFA. Of that 1.7 million people, three quarters are male. This bodes well for Qatar, as nothing says gender equality more than an extremely disproportionate amount of males compared to females. The US, on the other hand, is roughly evenly split at fifty percent male and femaler.

How about weather you ask? The average temperature in Qatar during the months of June and July is 42 degrees Celsius. Temperatures can reach as high as 50 degrees Celsius with continuous sunshine and no rainfall. These are the conditions to which FIFA agreed would be suitable for the World Cup. Qatar would argue that the heat will not be a problem as it will be countenanced by radical new cooling technologies capable of making 80,000 seat stadiums and the players on the pitch comfortable in the otherwise blazing heat. Comparatively, the average temperature in the US during June and July is a more reasonable 25 degrees Celsius.

What about labour force and working conditions? Surely, no matter what country is selected, infrastructure will need to be built to host the tournament. Qatar’s vast majority of trade’s workers are migrants from Pakistan, India, and Nepal. They have severe restrictions placed on their movement, including when they can exit the country. It is estimated by the International Trade Union Confederation (ITUC) that at least 4,000 migrant workers will lose their lives in preparation for the World Cup in 2022. These facts along with others have led the ITUC General Secretary, Sharan Burrow, to classify Qatar as a “slave state.” Yikes! While America does have a history of slavery for its labour, at least they did the right thing and banned slavery almost 150 years ago. It would be interesting to hear FIFA’s defense of its decision in light of these facts.

Given these examples and others, it is clear that there are serious questions concerning Qatar being awarded the World Cup. Almost immediately after the results were announced, allegations of corruption within FIFA began to surface. Calls for an inquiry, an investigation became so loud and so widespread, even FIFA could no longer ignore them. FIFA hired former New York District Attorney, Michael Garcia, in 2012 to investigate the bid process and submit a report of what really happened behind the scenes. However, just to demonstrate FIFA’s arrogance, they will not release this report to the public. Furthermore, in the last few weeks, calls to strip Qatar from the right to host the 2022 World Cup have even come from within FIFA’s inner circle. Outspoken executive members of FIFA, such as Theo Zwanziger from Germany, remarked that he personally believes that the 2022 World Cup will not be held in Qatar. Even Sepp Blatter, the kingpin of them all, has stated that selecting Qatar to host a World Cup was a mistake. It may just be a matter of time before the right thing is done and the tournament is moved. Until then, FIFA should start to follow its own motto, “For the Good of the Game.”

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To Grass or Not to Grass: Gender Discrimination at the FIFA Women’s World Cup Canada?

October 7, 2014

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By Fei Kang – Thompson Rivers University 3L JD Student

Canada will host the 2015 FIFA Women’s World Cup. Exciting, eh? The Canadian Soccer Association (CSA) will see this world-class tournament played from June 5th to July 6th in 6 cities across the country next summer. FIFA, the international governing body of football, agreed to a “2-star recommended football turf” as part of Canada’s bid deal; yes, artificial turf. Once this announcement was made, confusion and public outrage began. This is because the men’s equivalent of the event has only ever been played natural grass. My egalitarian Canadian roots tell me there must be a reason for this difference … but there doesn’t seem to be one.

Abby Wambach, a striker and leading goal scorer for the US Women’s Team, has been leading the public protest. She decided to take it public when nothing came of private complaints from the players to both FIFA and CSA. Wambach is not alone in her disdain either. International male players, US congressmen and even celebrities such as Kobe Bryant and Tom Hanks have given their two cents on the matter: “Hey FIFA, the women deserve real grass. Put in sod!”

There seems to be a consensus among soccer players that artificial turf is a second class surface and inferior for international soccer. Most can attest that turf is unforgiving on the players’ bodies, especially where recovery time is precious. Grass holds moisture, turf cannot. As a result, turf tends to get unbearably hot when the air temperature rises, which can lead to less-forgiving injuries, including second degree burns. Indeed, robust biomechanical data suggests that torque and strain may be greater on artificial surfaces than on natural grass. Recent data by Drakos et al. in 2013 suggest that elite athletes may sustain injuries at increased rates on the newer 3G surfaces. Some also say that the ball simply travels differently on turf and affects the game negatively.

FIFA states that while turf has been unsuccessful in the past, recent developments have made football turf a qualified and viable “best alternative” to natural grass. FIFA only certifies 3G systems, which fulfill quality requirements like playing performance, durability and quality assurance. Turf has financial advantages as well, which is where CSA likely stands, due to the resistance to weather, ability to endure intense use and multi-sport purpose. FIFA has stated that the particular geographic and climatic conditions in Canada mean it is more expedient to play on artificial turf, and that it is “the surface of the future.” In short, FIFA a is turf cheerleader.

The protesting athletes say the decision to play the tournament on turf amounts to gender discrimination because the men would never be forced to play the sport’s premier tournament on fake grass. In fact, there are no plans to shift future men’s World Cup tournaments to turf through to 2022. In late July, 40 top players and their lawyers joined in a letter of protest to FIFA and CSA. As of Sept 27th, FIFA has yet to respond and CSA has deferred comment to FIFA. The players are now poised to take legal action in Canada. Under the Canadian Charter of Rights and Freedoms, Section 15(1) states:

“Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on … sex.”

Additionally, under the BC Human Rights Code (and similarly enacted in every Province and Territory), a person (Section 8) or association (Section 14) must not discriminate against any person or member because of sex. The players will likely bring an action under both the Charter and Code.

Overall, it just doesn’t make sense. Even FIFA’s website out-rightly states that its certified turf is a best alternative to natural grass. So use grass? It’s the World Cup and we are not in 1915. Many questions remain: if turf is the future, why is it not incorporated in future men’s tournaments? Will the 40 players’ legal action be successful under anti-gender discrimination laws in Canada? Whatever the court says, and whatever FIFA and CSA may say, the fact is that it looks like turf is being used as experimental surface in a world-class women’s tournament. Women are being singled out. I am proud of the protesting players for their unwillingness to accept less than they deserve. We should not accept gender discrimination in international sporting events. We can do better, Canada.

 

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Exceptional FIFA ruling orders Italian clubs to pay for player’s breach of contract

November 4, 2013

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By Shaun Foster – Thompson Rivers University 2L JD Student

Chelsea Football Club is no stranger to big money transactions in the footballing world. Since Russian billionaire Roman Abramovich purchased the club in 2003, the club has spent on players without much business concern for turning a profit. This practice was most recently demonstrated in 2010 with the record breaking purchase price for Fernando Torres of £50 million (which, incidentally, has been viewed by many as a failure, with each goal Torres has scored costing Abramovich £3.3 million to date).

Perhaps as a result of their extravagant purchases, or the impending Financial Fair Play rules that will soon come into force, there are signs that Chelsea is beginning to tighten the purse strings. Interestingly, the most recent financial development for the club is in its legal battle with former player Adrian Mutu.

Mutu signed with Chelsea in 2003 for a reported £15.8 million. He started brightly with the club, but the new relationship went sour in September of 2004 when he failed a drug test for cocaine use. He was released from the club the following month and received a 7-month ban for his failed test.

This was followed by a series of legal battles between Mutu and the club, which concluded with the Court of Arbitration for Sport affirming a FIFA Dispute Resolution Chamber ruling that Mutu would have to pay Chelsea compensation of €17,173,990 for breach of contract. Mutu attempted an appeal to the Federal Supreme Court of Switzerland, but that was also dismissed and the order of CAS was affirmed.

After being released from Chelsea, Mutu was essentially a free agent in the footballing market. Juventus was the first club to show an interest in signing the elite striker on a free transfer since he had been released. As league rules governing the signing of non-EU players from abroad prevented Juventus from signing him directly, Livorno FC signed the player and held him for them (clubs are limited to how many players they can sign directly from abroad, so Livorno signed the player and then transferred him to Juventus to avoid the rule.

It has recently been reported by Italian newspaper Gazzetta dello Sport that Juventus and Livorno have been ordered by FIFA to pay Chelsea £17.9 million in compensation. Although neither club was involved in Chelsea’s contract with Mutu, it appears that the FIFA Dispute Resolution Chamber feels that they significantly benefited from the circumstances, and have informed Chelsea that they can demand the money from the two Italian clubs. It has been suggested that Livorno will argue that they were simply a pawn in the process, used by Juventus to get around the league rules and that they did not benefit from the signing.

Juventus, on the other hand, will await the written decisions from FIFA as to why they should be paying the damages caused by Mutu’s contractual breach.

The general principle surrounding privity of contract is that only the parties named in the contract are permitted to sue for breach. However, there have been both British and Canadian cases that have made exceptions to this rule. In London Drugs Ltd v Kuehne & Nagel International Ltd, an exception was made to allow for employees to benefit from limitation of liability clauses even though they were not named in the contract.

In Beswick v Beswick, Lord Denning made an equitable exception to the privity rule, where not doing so would have meant that the state of the law would be deplorable. He said that “no third person can sue, or be sued, on a contract to which he is a third party,” but that “is only a rule of procedure.” It is clear that both Livorno and Juventus were not party to the contract between Chelsea and Mutu. There is, however, no doubt that Juventus benefited from the acquisition of a released player (who was arguably worth nearly £16 million, as that is what Chelsea paid for him) without having to pay a transfer fee. The legal question, though, is on what grounds FIFA will be saying that Juventus must compensate Chelsea.

Without seeing the written decision, we can only speculate that FIFA’s order may be a principled exception to the general doctrine of privity of contract, stating that Juventus were unjustly enriched by Mutu’s breach with Chelsea. On the other, hand, some would argue that Juventus simply completed a bit of good business. They saw a troubled player for free in the market, and were willing to take a chance on him after Chelsea had disposed of his services. Either way, it is almost certain that Juventus will be appealing the decision to CAS, and it will be interesting to see the legal arguments and how it is decided.

Contract law, and the doctrine of privity of contract is understood in general terms to apply to all situations. It could be that FIFA’s judgment will demonstrate an understanding of how contracts in football terms are different from general employment contracts. In the normal workforce, a company does not pay millions of dollars in order to acquire another company’s star employee. Most valuable employees’ contracts will contain some sort of restrictive covenant that prevents them from working for certain competitors within a certain period of time if they breach their contract. In football, as is demonstrated in Mutu’s case, clubs pay their competitors compensation in order to retain their star players. It could be that, in light of this distinguishing feature, FIFA feels the need to create an exception to the doctrine to prevent abuse by competing clubs.

No matter what happens, Chelsea will be looking to collect £17.9 million in compensation (the original judgment, plus interest) from either Mutu, Juventus, Livorno, or some combination of all three. If football were a game played in purely financials and statistics, that would buy them another 5 goals from Fernando Torres.

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FIFA Considers Move to Winter for Qatari 2022 World Cup

October 4, 2013

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By Chelsea Dubeau – Thompson Rivers University 2L JD Student

In 2010, FIFA, the international governing body of football, awarded the 2022 World Cup to Qatar. The agenda on this week’s meeting of the FIFA Executive Committee meeting is a discussion of the “period of the competition” of this event.

According to the FIFA Statutes, the Organizing Committee follows a “fair and transparent bidding procedure” with “the objective of securing the best possible hosting conditions.”The temperature of Qatar in the summer can reach up to 50 degrees Celsius, prompting concern from the FIFA medical chairman.In the interest of safety for all participants, FIFA is considering moving the month-long tournament to the winter. FIFA’s upcoming decision is unprecedented, as the World Cup has been held during the months of May through July since its inaugural event in 1930.

Football Federation Australia (FFA) recently declared their intention to sue FIFA if the games are officially moved to the winter.Australia was one of the unsuccessful countries that lost during the 2022 bidding process. According to FFA Chairman Frank Lowy, the Australian bid was put forward according to the FIFA requirement that the tournament must occur in June and July. Thus, their bid was put forward under false pretenses.

FIFA has responded to the FFA allegations by saying that the Committee is acting within its governing authority. FIFA’s President, Joseph S. Blatter, has stated that all bids were put forward under the same Bid Registration Agreement, which does not outright say that the games must take place during the summer.Therefore, FIFA does not owe Australia compensation, nor will they owe any other party affected by the move.

FIFA is relying on issues of interpretation. As the Bid Registration Agreements have not been made public, the exact terms of the contract are unknown. However, Blatter has stated that the Agreements refer to FIFA’s wishes for the event to occur in summer, not that the event must be held during this time. As such, no representations were made by FIFA that the World Cup is only a summer event.

If the FFA decides to pursue their legal challenge, it will be up to the courts to rule whether FIFA’s interpretations of the Agreements fit within a fair and transparent process. FIFA’s choice to rely on semantics is questionable, and this argument may not succeed in a court of law. Every tournament in the history of the World Cup has occurred in the summer, and the upcoming events that have been scheduled uphold this tradition. The logical conclusion of a reasonable person, or in this case a reasonable bidder, would be that FIFA intends the games occur in the summer, even in absence of the word ‘must’ in the document.

In addition to the FFA, there are many other interested parties that may pose a challenge for FIFA and the Executive Committee if the decision is made to move the World Cup to the winter. The move will interfere with the season for the European leagues, and the IOC has expressed concerns related to the timing of the Winter Olympics.

FOX Sports won the American broadcasting rights to the 2018 and 2022 World Cup, paying over $1 billion for the deal.Due to the fact that it has never happened before in the history of the event, it is not likely that FOX considered the change that the broadcast could happen in the winter. With this change, it is now possible for the month-long event to interfere with the NFL schedule, and it could even overlap with the Superbowl. Would FOX have put forward such an impressive bid, knowing that it would be competing for viewers against the most-watched sporting event in the United States? It would not be surprising if FOX proceeds with an action based on a misrepresentation of the contract. FOX can assert that they were induced to enter the contract based on an untrue representation that the event would occur in the summer.

While the decision has not yet been made to move the World Cup, it is clear that there are multiple considerations that FIFA must keep in mind before the final decision is made. Regardless of the outcome, one can expect that this will not be the only challenge faced by the Committee leading up to the 2022 World Cup.

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Is Sepp Blatter the new poster boy for “sports law”?

November 18, 2011

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Photograph licensed by Agencia Brasil under the Creative Commons Attribution 2.5 Brazil license.

In recent days it has been difficult to avoid the furore surrounding Sepp Blatter (President of FIFA)’s recent comments concerning what he sees as the new approach to treat racism in sport:

“I would deny it. There is no racism.  There is maybe one of the players towards another – he has a word or a gesture which is not the correct one. But the one who is affected by that, he should say that this is a game. We are in a game, and at the end of the game, we shake hands, and this can happen, because we have worked so hard against racism and discrimination.”  (http://www.guardian.co.uk/football/2011/nov/17/sepp-blatter-fifa-racism-rio-ferdinand?newsfeed=true)

In the current UK climate where two high-profile premiership footballers are currently being investigated by The Football Association over, as yet unproven, allegations made against them of making racist comments (which both players vehemently deny), Blatter’s recent interview is at best ill-informed, at worst it represents an attempt to trivialise and condone racist language.

Many players (current and former), pundits, administrators and politicians have rightly come out and strongly condemned Blatter’s comments, however until the commercial sponsors also seek to distance themselves from FIFA, I fear that the status quo will continue and this will not be the last controversial statement emanating from FIFA house. After all, President Blatter offended female players in 2004 with his suggestion to enhance the women’s game through players wearing:

‘tighter shorts and low cut shirts… to create a more female aesthetic.

and his 2008 assertion that:

‘there are gay footballers, but they don’t declare it because it will not be accepted in these macho organisations. Look at women’s football – homosexuality is more popular there

Indeed, he clearly warmed to this theme of homophobia, returning to it in 2010 with advice to gay rights campaigners to ‘refrain from any sexual activities’ to avoid breaking any laws and offending the World Cup hosts in Qatar!

What are the odds then on Blatter offending disabled footballers next in his attempts to discriminate against everyone equally?

 

Much ink, column space and tweets have been spilled dissecting his most recent comments, but everybody seems to be missing something, is Sepp Blatter not in fact the new poster boy for “sports law”?

So what do I mean by this? It has long been a perennial (and somewhat dry) academic debate as to whether sports law exists. Is sport special, where what happens on the pitch stays on the pitch, immune from the laws of the land (sports law)? Or should offences be punished wherever and whenever they occur irrespective of the fact they might occur on a sportsfield (sport and the law)? Or is there some sort of middle ground where we take into account the context of the game being played (applied sports law).

When the latest player gets carted off injured, there is inevitably a reluctance for the law to become involved for fears that it might lead to a sterilization of the sport and the vigour with which it is played. However is this not what Sepp is also clumsily advocating (only in the context of racism rather than personal injury), as such, is this not simply a manifestation of an extreme view of what could happen if we allow sport to completely self-regulate itself?

While his comments on racism are rightly condemned, we can see similar language already exists in relation to personal injury, for example, compare Blatter’s later comments on the FIFA website:

“My comments have been misunderstood. What I wanted to express is that, as football players, during a match, you have ‘battles’ with your opponents, and sometimes things are done which are wrong. But, normally, at the end of the match, you apologise to your opponent if you had a confrontation during the match, you shake hands, and when the game is over, it is over.” 

With the well-known Canadian criminal law ice-hockey case of Agar v Canning (1965) 54 WWR 302, 304:

“The conduct of a player in the heat of the game is instinctive and unpremeditated and should not be judged by standards suited to polite social intercourse.”

Isn’t Blatter merely taking this Agar personal injury concept to the next level and attempting to apply it to every incident on the sports pitch (or on this occasion as an ill-thought out and unacceptable attempt to try to excuse or condone racist behaviour).

Speaking to BBC Radio 5 live, former player turned pundit, Garth Crooks was quoted as saying that:

“Football has to be very careful. It’s the one industry that somehow sees itself as above the law. It is not. Players, however glorified, are employees and have to abide by the law. Sepp is a man out of time and out of touch.”

However maybe it is actually the rest of us that have to be very careful. With every reaction against verdicts like:

  • the Bosman ruling, or Karen Murphy’s recent European Court victory in her challenge against the Premier League and Sky Sports,
  • the 2010 case of Sagen v. VANOC where Canadian courts upheld womens ski-jumpers argument that their ban from the Winter Olympics was discriminatory but ultimately held that there was nothing that could be done in the face of a lack of constitutional jurisdiction over the International Olympic Committee (IOC)
  • government ‘meddling’ in the governance arrangements of national governing bodies
  • and perhaps more importantly the impending FC Sion legal dispute

maybe we are actually inching ever closer to Blatter’s extreme view where it is unaccountable sporting authorities that control what happens on the pitch unregulated and effectively immune from any national or international legislation?

The reaction against Blatter’s comments from all walks of life gives me some hope that maybe we are not as far down this route as we might have initially appeared to be, the question now for the public and administrators to decide is how ‘special is sport’ and to what degree do we expect it to meet minimum standards of governance, transparency and equality? Or put simply how far do we trust sport to regulate itself?

Quia Custodet Ipsos Custodes?

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