As we begin the new year, we are running a series of articles reflecting on the key legal issues impacting sport different jurisdictions and regions around the world in 2017.
For this article we have approached some of the leading sports lawyers in Central and South America to share their views on what they think was the biggest sports law issues of 2017.
We would like to thank all of the contributors to this article for taking the time out of their busy schedules to share their views with us.
- Mariana Rosignoli, Partner, S. Santos Rodrigues Lawyers
- Ariel Reck, Sports Lawyer, Abogado Derecho Deportivo
- Roberto Barracco, Summer Sports Institute Faculty at University of Oregon School of Law
- Marcos Motta, Founding Partner, Bichara e Motta Advogados
- Jonathan Rangel, IP Litigation Manager, Dumont Bergman Bider & Co, S.C.
- Ricardo de Buen Rodríguez, Founding and Managing Partner of the Law Firm de Buen Rodríguez Abogados, S.C.
We hope you enjoy the article.
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Partner, S. Santos Rodrigues Lawyers
As expected, the issue of integrity in sports was on the rise in 2017. The high point was the arrest of Carlos Arthur Nuzman, president of the Brazilian Olympic Committee (COB), appointed as the intermediary and main actor of a criminal scheme that united the economic interests of entrepreneurs and politicians from Rio de Janeiro with some of the members of the International Olympic Committee (IOC), willing to sell their votes for the 2016 Olympic city election. Another important case was the testimony of Argentinean Alejandro Burzaco in New York who paid bribes to several senior executives of the South American Football Confederation (CONMEBOL) and also partnerships with other media companies in Brazil Mexico, Spain and the US.
In that sense, South American entities such as CONMEBOL began to worry more about internal management - exposing their finances, measuring the consequences of the corruption schemes of previous years and hiring companies in order to prevent, detect and investigate the various forms of match manipulation that may occur. In terms of technology, CONMEBOL first used the video assistant referee in 2017.
With regard to doping the Anti-Doping Court of Justice began to operate in Brazil, which considers doping related cases of all sports modalities.
In 2017 it was also observed the exponential growth of the e-sports in the region, with several championships in the various countries and the realization of a championship even within the scope of the Brazilian Football Confederation - "e-Brasileirão".
Sports Lawyer, Abogado Derecho Deportivo
The key sports law issue in 2017 in was the sanction imposed by FIFA against the Bolivian Football Association for fielding an ineligible player in two qualifying games for the World Cup Russia 2018.
In November 2016, FIFA sanctioned the Bolivian Football Association for fielding an ineligible player (Nelson Cabrera) in the preliminary competition matches for the 2018 FIFA World Cup Russia played between Bolivia and Peru on 1 September 2016 and between Chile and Bolivia on 6 September 2016. FIFA declared both matches forfeited, awarding a 3-0 result in favor of Peru and Chile and a total fine of CHF 12,000 for breach of art. 55 par. 1 of the FIFA Disciplinary Code and art. 8 of the Regulations for the 2018 FIFA World Cup Russia.
The decision was further confirmed by FIFA´s Appeal Committee and was taken by the FBF to the Court of Arbitration for Sport (CAS). The Association did not dispute that Cabrera failed to meet FIFA's eligibility rules but questioned the right of FIFA to launch its own investigation one month after the games were played and following a claim by the Associations of Peru and Chile. According to the FIFA World Cup regulations, protests must be lodged within a short time frame after the final whistle of any game.
Probably the most interesting issue of the case was the involvement as third parties of almost every other association of Conmebol (with the exception of Brazil and Venezuela). Bolivia´s appeal was directed against FIFA, and Chile and Peru intervened as “directly affected” parties. On the other side, backing
Bolivia´s position, Ecuador, Uruguay, Argentina, Paraguay and Colombia requested intervention and were admitted as “indirectly affected” parties, with a limited right to be heard during the case (a 5-page presentation and a 10 minutes oral intervention during the hearing for each association).
On August 29, 2017 a CAS panel composed of Prof. Massimo Coccia, President (Italy), Efraim Barak (Israel), and José Juan Pintó (Spain) dismissed the appeal. The Panel found that FIFA had the right to initiate ex officio disciplinary proceedings against Bolivia under the Disciplinary Code within a time limit of two years (Articles 108 and 42) and that there were no inconsistencies between the Code and the World Cup regulations (CAS 2017/A/5001 & 5002 Federación Boliviana de Fútbol v. FIFA).
Summer Sports Institute Faculty at University of Oregon School of Law
Brazil’s 2017 kept on being politically hectic. Its sports were heavily hit by scandals and lack of financial means. And Brazilian sports institutions had to go through the E.R. The Brazilian Soccer Federation (CBF), the Brazilian Olympic Committee (COB), and the “Brazilian WADA” (ABCD) have all been focal points of change this year.
On its way to “transparency”, CBF restructured itself and created its “Governance & Compliance Department”. Other initiatives were the enactment of CBF’s new Statutes and Code of Ethics as well as a crash courses on the new topics at the CBF Academy, a roadshow to the 1st FIFA Compliance Summit, and its own “Transparency Portal” at CBF’s website – where one can find most of its regulations. Concluding CBF’s busy year, it also has put in place a newer version of its Athletes’ Transfer and Registration National Regulation and Intermediaries Regulation – not to mention its own DRC and Club Licensing Regulation that I will talk about later.
Meanwhile, COB was central to one of the many bribery scandals breaking through the Brazilian media this year. Its president was “dethroned”, and even the IOC had to step in by suspending its Brazilian counterpart until the COB could put its own house in order. But other than what some have labeled this episode as the “best Olympic legacy Brazil could have”, COB has recently undergone a reform allowing athletes to be part of its General Assembly (12 members of COB’s Athletes Committee) and to vote. That might be a fresh start to the Brazilian Olympic Committee, and only the future will tell.
Speaking about a brighter future, earlier this year WADA removed the ABCD (the Brazilian Anti-Doping Agency) from the WADC non-compliant list. The “Brazilian Wada” adopted procedural rules in line with the World Anti-Doping Code and created a new Disciplinary Tribunal (TJDAD) separated from its Sports Justice Courts (TJDs).
Putting it all together in one sentence, 2017 was a necessary fresh start for Brazilian sports institutions. This phrase can define the year for sports in Brazil, bringing new perspective and challenges to our sports law.
Founding Partner, Bichara e Motta Advogados
Key issues of 2017:
- Difficulty in preventing the practice of Third-Party Ownership (credit assignment contracts of civil nature x prohibition in the sports environment)
- State legislation x Sports Entities’ regulations (e.g. “Profut Law”, which imposes the insertion of certain rules on sports administration entities and establishes sanctions in case of failure to pay the debts violation of the autonomy of sports entities);
- New Club Licensing Regulations (will come into force on 2018, but will clubs be able to meet the established criteria and qualify to participate in the championships?);
- Labor Justice adjudicating employment relationships between players and clubs, bringing legal uncertainty to the sporting environment (see Oscar and Zeca cases);
- Absence of punishment for Intermediaries (in cases of breach of exclusivity, lack of effective service provision, etc.).
IP Litigation Manager, Dumont Bergman Bider & Co, S.C.
Unfortunately, in Central and South America we continue living in a region highly unequal for women. Thus, it becomes really important and plausible when agents from different sectors of the industry try to make a change.
Therefore, the introduction of the Mexican Women’s Soccer League (called “Women’s Liga MX”) was especially expected. It was created with the goal to strength the national team, extend its market among women and eventually attack top foreign talent to Mexico.
Its first edition was clearly a success. It is made up of 16 Liga MX teams. The inaugural season began on July 2017. Its final game set a record of attendance for the league with almost 33000 people in the stadium. The first final of the Women’s Liga MX took place last November and was won by the Chivas team, which defeated Pachuca 3-0 (3-2 on the aggregate).
Ricardo de Buen Rodríguez
Founding and Managing Partner of the Law Firm de Buen Rodríguez Abogados, S.C.
In the case of Mexico, two important events took place: Firstly, a new Football Players Union was born. An important issue to mention is that it was incorporated as a Civil Association not as a Union, which will prevent this group of players from being able to have the power to demand the signature of a collective bargaining agreement. They will depend on the good faith of the Clubs to achieve their goals. Secondly, the Mexico City lab recovered its WADA accreditation after a long period of suspension.
- Anti-Corruption Anti-Doping Argentina Association of Football Agents (AFA) Brazil Brazilian Center of Mediation and Arbitration (CBMA) Brazilian Football Association Central America CONCACAF Confederación Sulamericana de Fútbol (CONMEBOL) Copa América Centerario Fencing FIFA Football Governance Olympic Paralympic Profut Law Regulation South America World Anti-Doping Agency (WADA) World Anti-Doping Code (WADC)