Football & the Law review
Published 04 April 2012 By: Kevin Carpenter
On Friday 30th March 2012 I attended the inaugural Football & the Law Conference at the Radisson Hotel, Manchester, UK hosted by Edge Hill University in co-operation with Brabners Chaffe Street solicitors. The event was designed to respond to the professional needs of those whose work brings them into contact with legal issues relevant to football.
The first panel of the day looked at third party ownership (‘TPO’) and agent regulation chaired by leading sports lawyer Maurice Watkins CBE of Brabners. Nick Craig (in-house counsel, The Football League) explained the difference between the FIFA Regulations and those of the Football League/FA, particularly as regards the concept of ‘influence’, with the latter regulations being far starker and restrictive. Roberto Branco Martins (General Manager, European Football Agents Association (‘EFFA’)) then spoke to the delegates on the proposed reforms by FIFA in the field of agent regulation, or as EFFA sees it ‘deregulation’. Interestingly EFFA are not in favour of deregulation for various reasons including conflict of laws if any disputes arose and the ability of agents to represent minors (although initially without remuneration until they were no longer minors but they could still exercise undue influence). The final speaker of this session was Daniel Rodrigues (Legal Director, FC Porto) who extolled the virtues of the Portuguese system where third party investment is commonplace and indeed welcomed. He said that the 'pure sharing of risk' policy at Porto in relation to third party investment helped to even out the various structural imbalances in the game (for example the UEFA TV pool being distributed on the basis of viewer numbers rather than equally). Daniel's presentation was entertaining and informative, especially for the English delegates to whom this approach is alien.
The next panel session, chaired by the Portuguese Secretary of State for Sport and Youth Alexandre Mestre, had a European focus looking at Social Dialogue in Professional Football from the perspective of three of the stakeholders closely involved in its development. The EU perspective came from Pedro Velazquez (Deputy Head of the Sport Unit, European Commission) who highlighted the three main strands of Social Dialogue: Autonomy, Governance and Specificity, and how the three interact. He stressed that football is mostly self-regulated but there is the challenge of multi-level governance. Indeed I would venture to question how much added value the increasing presence of the EU provides to professional football given it is a further level of governance? Essentially he stressed that the notion of 'Social Dialogue' is a governance tool for football stakeholders to come together. Which led nicely onto two of those stakeholders to elaborate further. Emanuel Macedo de Medeiros (CEO, European Professional Football Leagues) introduced the ‘Autonomous Agreement’ which will be entered into in Brussels on 19th April that seeks to promote and develop conditions of employment for footballers’ by formalising minimum requirements for players’ standard contracts. Legally he stressed the importance of the principle of subsidiarity to reflect national laws, existing collective bargaining arrangements and current player contracts. Theo van Segglen (Secretary General, FIFPro) then said that the Social Dialogue can be extended into other areas of sport, not just contractual relations, but this is an important first step as currently half of players in the UEFA associations do not have a transparent formal contract.
After lunch players contracts were once again on the agenda but this time in relation to the troubled history of Article 17 of the FIFA Regulations on the Status and Transfer of Players and its impact on contractual stability. Chair of the session Carol Couse (Partner, Brabners) set the scene with a useful and informative overview of the background and rationale to Article 17 and then a more detailed analysis of its text. Of particular note is that the breach of contract under Article 17 is a strict liability offence and carries with it joint and several liability for the offending player and club, which as seen in the recent attempt to enforce in the Matuzalem case is not always as useful as it seems. Following on Mark Hovell (Partner, George Davies Solicitors & CAS Arbitrator) gave a fascinating analysis of the Court of Arbitration for Sport’s (‘CAS’) jurisprudence on Article 17 opining on numerous interesting legal and practical issues from the (often criticised) series of cases including: who is the breaching party, the phrase "with just cause" in the text and it taking almost 3 years for a case to be heard by CAS. It seems the current position following the infamous De Sanctis ruling (upon which Mr Hovell sat as head of the panel) is that damages for breach of Article 17 should be based on actual losses suffered, which surely has to be right. A lively panel discussion followed also involving Wouter Lambrecht (Legal Counsel, European Club Association) and Wil van Megen (Manager of the Legal Department, FIFPro). One aspect of much debate was the 'positive interest' criteria which has evolved in the CAS jurisprudence with Mr Lambrecht unsurprisingly being in favour for the clubs with Mr van Megen arguing that it is not an objective criteria and the interest of the clubs are already sufficiently protected by the contractual 'stability period’ contained in Article 17. Mr Hovell also cited a complete lack of argument on an EU law basis in the De Sanctis case and that he expects a case to go the European Court of Justice on the topic in the future. Further he questioned whether, partly due to the elapse of time in these cases coming to a conclusion, whether a player should be allowed to claim damages for his career being ruined where he is the wronged party?
The final session of the day looked at various ‘organisational issues' in football and the law. As one would expect from a senior barrister Paul Harris QC (Monckton Chambers) gave an eloquent, engaging and entertaining review of the series cases brought (unsuccessfully) by the Premier League on broadcasting rights in the EU, which he described as of parallel importance to Bosman. Interestingly he highlighted the fact that section 72 of the UK Copyright, Designs and Patents Act gives a specific defence with regard to the main part of Premier League broadcasts that is not in the EU Directive on the issue. Further, regarding the criminal case brought against publican Karen Murphy, he noted the veiled criticism in the judgment that she had been pursued through the criminal law at all and as a result she was awarded huge costs on a civil basis but in a criminal case. Nick Fitzpatrick (Partner, DLA Piper solicitors) then talked more on the sale of broadcasting rights in light of the recent case law. In doing so he said that practically not a great deal had changed particularly as it is no more legitimate now to use a domestic decoder in a commercial setting than it was before, and that only decoders have been affected by the rulings and not other methods of geo-blocking. Stephen Weatherill (Jacques Delors Professor of European Law, Oxford University) gave an impassioned and enigmatic speech on the conditional autonomy of sport under EU law through the 'specificity of sport' concept, which although now stated explicitly in the Lisbon Treaty in his opinion is nothing new at all. Finally, Paul Rawnsley (Director, Deloitte LLP) provided a clear financial analysis and explanation of the UEFA Financial Fair Play Regulations from a fresh angle including some fascinating statistics on how many clubs would currently be in breach.
The inaugural Football & the Law Conference was a well-attended event that provided a thought provoking and enlightening day on many current issues facing practitioners whilst also catering to the academic debate. It benefitted from a more diverse range of delegates being based outside of London and attracted a high calibre of speaker. It would have been nice to have had more networking time through the day to discuss the panels more informally with fellow delegates and less speakers from what are essentially trade bodies. However, congratulations should go to both Richard Parrish of Edge Hill and Brabners and I certainly hope the event will become a regular fixture on the conference circuit.
Kevin Carpenter, April 2012
Executive Contributor, LawinSport.com
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Kevin is a advisor and member of the editorial board for LawInSport, having previously acted as editor. In his day-to-day work he has two roles: as the Principal for his own consultancy business Captivate Legal & Sports Solutions, and Special Counsel for Sports Integrity at leading global sports technology and data company Genius Sports.