EDITORIAL

With great pleasure, we welcome readers to the September 2017 edition (citation: GSLTR 2017/3) of our ground-breaking Journal and on-line database (www.gsltr.com), a very useful resource: Global Sports Law and Taxation Reports (GSLTR).

Since the last issue of GSLTR, the summer transfer window in association football has opened and closed and has brought with it a world record transfer fee of £ 200 million, which has been paid by Paris St. Germain for the Brazilian Barcelona forward Neymar da Silva Santos Junior. This sum is more than double the previous world transfer record fee of £ 89 million, set during the 2016 summer transfer window, which was paid to secure the move by Paul Pogba, the French central midfielder, from Juventus to Manchester United. This fee has received a mixed reception from the football world.

In particular, the question has been asked whether such mega sums are justifiable and sustainable? According to Richard Scudamore, the Chief Executive of the English Premier League, the economic realities of the major football leagues support that level of spending, especially from the eye-watering revenues received by clubs from the collective sale of TV and new media rights. Of course, this is perhaps a predictable reaction from the world’s most followed and viewed league and also its most lucrative one.

However, other commentators take a different point of view and do not believe that such sums are, in fact, sustainable or, indeed, justified. For example, FIFPro, the world players’ union, has called for the transfer rules to be investigated by the European Competition Law Commission as being anti-competitive in a business and commercial sense. Its Secretary-General, Theo van Seggelen, is reported to have said that the FIFA Transfer Rules are “anti-competitive, unjustified and illegal” and changes were needed “in order to protect the rights of players as workers and safeguard the best interests of the game”. Arsène Wenger, the veteran Arsenal manager, has also weighed in with his views that the Neymar transfer fee is “irrational” and that clubs should not overpay for players. A football manager that practices what he preaches!

With such mega sums circulating in football, opinions are bound to be diametrically opposed and forcefully expressed in various quarters of the football and sporting world. It will be interesting to see what action the EU and/or FIFA take, if any, in this on-going debate and controversial matter. What, we wonder, do our readers think? Please have your say by posting your views on our website! We always welcome your comments!

Whilst on the subject of football transfers, we publish an article by Andrea Basso of MRGL, Advogados, Lisbon, Portugal, on the important subject of the protection of minors under the FIFA Regulations on the Status of Players and Transfers. As the author points out in the introduction to this article:

FIFA has always been – and continues to be – extremely concerned about the fact that more and more minor players are leaving their families and countries in pursuit of a professional football career abroad. When playing in a foreign country, most of the time away from their families, these minors are more dependent on their clubs and find themselves, therefore, in a more vulnerable position.

Art. 19 of the FIFA Regulations on the Status and Transfer of Players (RSTP) is FIFA’s response to the unfortunate reality of those many children moving internationally, in particular, to Europe.

The first paragraph of this article (edition of 2017) prohibits, as a general rule, the international transfer of players below the age of 18. However, the second paragraph of the article provides some flexibility for both clubs and players […].

After reviewing these provisions, Basso analyses some CAS awards involving certain high-profile Spanish football club cases involving the transfers of minors and, in a concluding part of the article, sets out some lessons to be learned by clubs from these cases.

Also on the sports law side, we publish, in this edition of GSLTR, the second and final part of a major article by Dr. Alara Efsun Yazıcıoğlu, ll.m, Senior Attorney at Law, PwC, Istanbul, Turkey, on women in professional sport. Despite the importance that seems to be attached to gender discrimination by international sporting organisations, not least by the IOC under the Olympic Charter, and also by national authorities, women participating in professional sport continue to face severe obstacles as she points out in the article. In the conclusion to her article, she calls for change in relation to gender discrimination in sport in the following uncompromising terms:

The battle of women to take part in professional sports in an equal manner to men is still on‑going. The available legal remedies are obviously not apt to install the gender balance in the sector. To break the vicious cycle of gender discrimination in sport, even more perpetuated by the approach of the sports’ media, States and sports’ governing bodies, action should be taken. The first step must be the neutralisation of the negative effects produced by centuries-long discrimination. The time has come for the “positive discrimination” of women in the sports’ sector.

We would entirely agree with her!

We also publish an interesting article on putting the FIFA Transfer Regulations into their proper legal context, by Simon Collingham and George Gros of VII Law, based in The Temple, London, UK. VII Law is an innovative law firm comprising multi-disciplinary members, who offer a wide range of legal advice and representation to the sports community. See the post of 8 July 2017 on the GSLTR website[1] for more information. In their article, they explain how these Regulations fit into the general legal framework. As the authors point out the Regulations constitute a complex set of rules in themselves, that, in addition, are governed by a complex set of legal provisions, which comprise so-called “FIFA football law” as well as external legal regulations, such as national labour laws. Quite a legal jig-saw puzzle!

We have noted on the GSLTR website and also in the journal itself, the inexorable rise of esports (electronic sports) and we publish an exclusive article by Ian Smith on “The mission and role of the Esports Integrity Coalition (ESIC)”, of which he is Integrity Commissioner. As he points out in this article:

The rise and rise of esports, in itself, presents a number of challenges on the regulatory and governance side, but, when combined with the parallel rise in esports betting worldwide, the challenges become seriously complex.

And he goes on to say:

It may seem as if esports has emerged from nowhere into the light over the past twelve months and now everyone is talking about it and pretending to understand what it is; but, of course, it has not come from nowhere: it was simply invisible to people outside the esports community.

The article seeks to answer the following pertinent questions: who is in charge and what are they doing?

He sets the scene by explaining that esports is the top level of competitive video gaming, and continues as follows:

The best analogy is to consider ordinary video game players playing against other video game players as two people kicking a ball to each other in the back garden or, at best, two five-a-side teams going at it on a Wednesday night at the recreation centre. Professional esports players, on the other hand, are Neymar playing for Barcelona or Tom Brady playing for the Patriots and, before you scoff, yes, they really are that good.

He concludes his article in the following terms:

Traditional sports governance, particularly the European model, has not set a glowing example of how to do things for the esports industry, so we expect it to be a long time before esports is run like any other sport – and we do not see that as a big problem.

The big problem is the lack of common standards across the industry dealing with common problems. Things like youth protection, player and spectator safety, integrity, corruption are at the whim of each company and that will make politicians and others nervous because the fan demographic is of increasing interest.

Our focus over the next year is to raise awareness of ESIC and the issues for which we exist to combat, and also to recruit more members into the coalition to increase our effectiveness – we need to set industry standards, at least, in the area of integrity.

The alternative is, of course, that an external agency comes in and imposes standards and the industry will hate that. They value their autonomy, but, if they want to keep it, they need to get their act together on these key issues!

Finally, on the sports legal side, we include an article by Prof. Dr. Ian Blackshaw on “Some problematic clauses in football commercial contracts”, based on a presentation that he made at an ECA/UEFA Legal Workshop held in Marseille, France, on 9 June 2017. He takes a critical look at some important clauses in these contracts that may give rise to drafting, interpretation and enforcement problems in practice. Amongst the clauses that Prof. Blackshaw singles out for consideration are “heads of agreement”; options to renew and matching options; termination clauses; and dispute resolution.

In his concluding remarks, Prof. Blackshaw makes the following salient points:

“All sports commercial agreements, including football-related ones, should be individually drafted to reflect the particular commercial deal that has been negotiated between the parties to them ……. Precedents and common forms should be used only as a general guide and ‘aid memoire’ and not slavishly followed……. [and] drafting and interpretation ……. go hand in hand, and should always be treated as two sides of the same legal coin!”

All sports commercial agreements, including football-related ones, should be individually drafted to reflect the articular commercial deal that has been negotiated between the parties to them. […] Precedents and common forms should be used only as a general guide and “aid memoire” and not slavishly followed […] drafting and interpretation […] go hand in hand, and should always be treated as two sides of the same legal coin!

On the sports tax side, we publish an article by Ricardo da Palma Borges and José Pedro Barros on a recent ruling of 6 April 2017 by the Portuguese Tax Arbitration Court in a case concerning the taxation of sports image rights in Portugal. This case dealt with the Portuguese Corporate Income Tax (CIT) due on income from the granting of sportspersons’ image rights and economic-sporting rights by non-Portuguese tax resident standard (i.e. non-sporting) companies and the application of double taxation conventions (DTC).

We also include contributions by Thomas Dalby on the long-running and complex tax case involving the Scottish football club Glasgow Rangers, which has now been finally decided against the club in the UK Supreme Court, which held that all the contributions to the Remuneration Trust were taxable employment income and that PAYE and NIC should have been operated when the contributions were made; by Stefano Dorigo and Pietro Mastellone about the thorny issue of tax residence of professional footballers in Italy; by Panagiotis C. Roumeliotis on the topical subject of football intermediaries’ commissions, which can be stratospheric (see, for example, the 2017 Summer transfer of Neymar at € 222 million, in which his agent was reputedly paid a commission of € 41 million), and whether they should be taxed in the State in which the transfer takes place;

and by Dr. Dick Molenaar about a second conflicting Court decision in The Netherlands concerning an extra tax leviable on a footballer’s share in his transfer fee. Both of these Court decisions are being appealed to The Netherlands Supreme Court, so the uncertainty remains!

As always, we would welcome and value your contributions in the form of articles and topical case notes and commentaries for our journal and also sports and tax law developments for posting on the GSLTR dedicated website www.gsltr.com. A number of you have already responded to this invitation, and continue to do so, but, as they say, the more of you who do this, the merrier!

We end on a personal and professional note by congratulating Prof. Dr. Ian Blackshaw on the publication by the Asser Press of his new book entitled International Sports Law: An Introductory Guide.

 

So, now read on and enjoy the September 2017 edition of GSLTR.

 

Dr. Rijkele Betten (Managing Editor)

 

Prof. Dr. Ian S. Blackshaw (Consulting Editor)

 

September 2017

 

[1]     www.sportsandtaxation.com/2017/07/innovative-sports-las-firm-set-up-in-london-2.