Islj 2009 3-4 - TMC Asser Instituut

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sions and it is, therefore, difficult to understand or predict its corporate mind and how it has reached these decisions! What golf and rugby will actually contribute to the Olympic programme remains to be seen, bearing in mind that both sports have their global money spinning events - the Open and three other major competitions and the Rugby World Cup respectively - and, therefore, their ‘stars’ are likely to concentrate on them rather than participating in the Olympics! Rather than extending the Olympic programme, is it not time to reduce it. In my view, the Olympics have become too big and, to some extent, unmanageable - at least financially. Take the 2012 London Games, for example, they are already several billion pounds over budget! As a traditionalist that cares for safeguarding the integrity of sport, is it not time that the Olympics got back to their Ancient Grecian grass roots and that only running, jumping and throwing sports were included in a slimmed down Olympic programme? At least, this would be more in keeping with the philosophy which inspired the founder of the modern Olympic Movement, Baron Pierre de Coubertin, when he revived the Olympics in 1896 in Athens, in which fewer than 250 athletes took part! His philosophy is still encapsulated in the Olympic motto: “The most important thing in the Olympic Games is not to win but to take part, just as the most important thing in life is not the triumph but the struggle. The essential thing is not to have conquered but to have fought well.” Nowadays, this motto is more honoured in the breach than in the observance. Where winning amongst the athletes is more important and success amongst the sponsors of the Games is measured in purely monetary terms! The excessive and quite obscene spectacle of commercialism of the Centennial Games in Atlanta - quite rightly dubbed the ‘Coke Games’ largely through the sponsorship of Coca-Cola - is still fresh in the memory! Again, to reduce the costs of staging the Games and to provide a permanent legacy of them, is it not also time to provide a permanent venue for them? In this connection, a body of opinion to hold the games in Greece - perhaps in Olympia or Athens - is growing all the time and not, in my view, without some justification. Such a move would also add credibility and integrity to them, which they are seriously in danger of losing! Is it not also time to get back to amateurism? Boxing is the only Olympic sport that is practised by amateurs! As far as Coubertin was concerned, the Olympics were always for amateurs and not professional sportsmen and women. He drew his inspiration from the English Public School system, which subscribed to the belief that sport formed an important part of education; an attitude summed up in the saying mens sana in corpore sano - a sound mind in a sound body. In this ethos, a gentleman was one who became an all-rounder, not the best at one specific thing. There was also a prevailing concept of fairness, in which practicing or training was considered tantamount to cheating. Those who practiced a sport professionally were considered to have an unfair advantage over those who practiced it merely as a hobby. Are these ideas and values too alien for the mores of the twenty-first century? I think not! In any case, at least the IOC has dropped the requirement of amateurism, which had become hypercritical, from the Olympic Charter and with it the ‘shamateurism’ of earlier years, which did not bring much credit on the Olympic Movement and Olympism and all that they are supposed to stand for! Conclusion The Olympic Games are in danger, as mentioned above, of becoming a victim of their own success! It is high time to reassess the organisation, the size and the costs of staging them in the interests of sporting integrity. But will the IOC heed such calls? Probably not, because money - as usual - will be the determining factor. But watch out - for as someone once said: ‘money is the root of all evil!’ English Premier League ‘Fit and Proper Person’ Rules: Are they Tough Enough and are they Being Strictly Applied and Enforced? Introductory Remarks Football is not only the world’s favourite game, but it is also the world’s most lucrative sport. Indeed, according to Sepp Blatter, the President of FIFA, football’s world governing body, football is now a product in its own right. As such, the famous remark of Bill Shankly, the legendary former manager of Liverpool Football Club, when asked whether football was a matter of life and death, “Oh no” he said, “it is much more important than that!” is not so far away, nowadays, from the actual truth about the ‘beautiful game’! With so much money sloshing around the game, it is not surprising that football has attracted many investors, not least foreign ones, a number of whom are unscrupulous and out for their own ends and gains and not ‘for the good of the game’. Indeed, some of them are down right criminals and could use their investments in football clubs for money laundering and tax evasion purposes (see the author’s comments on the OECD Report of 1 July, 2009 on ‘Money laundering and tax evasion in football’ published on the official website of the TMC Asser International Sports Law Centre on 17 August, 2009). The English Premier League is not only the world’s most popular League, but is also the world’s most lucrative one. And, with the recent purchase of Portsmouth Football Club, by the Saudi, Ali al- Faraj, half of the twenty English Clubs comprising the Premier League are now owned by foreigners. This fact and the controversial purchase and sale of Manchester City Football Club by the former Thai Prime Minister, Taxin Shinawatra, who is wanted in his own country on corruption charges, as well as the number of Football Clubs that have gone into liquidation, through reckless financial arrangements (especially highly leveraged ‘buy-outs’ such as the one that brought the Glazer’s to ownership of Manchester United Football Club), has prompted the English Football Authorities to introduce a ‘fit and proper person’ test to root out unsuitable investors in English Football Clubs. So, what are the rules? The Rules The ‘fit and proper persons test’ was first introduced in 2004 with the intention of safeguarding clubs against falling in to the ownership of unscrupulous owners, with nothing in place before that time to stop those previously convicted of criminal offences, such as fraud, from buying and running clubs. Rules were established jointly between the English Premier League, Football League and the Football Conference that any prospective director of a football club or someone looking to buy over 30 per cent of the club’s shares needed to satisfy them that they were ‘fit and proper’ persons to do so. The details of the test are detailed and complex but the most important points prohibit anyone with unspent criminal convictions relating to acts of dishonesty or someone who has taken a football club into administration twice from taking charge of a football club. The only person currently known to have fallen foul of these rules is Dennis Coleman, who, as director of Rotherham United, was responsible for twice taking the Yorkshire club into administration (insolvency). The exact criteria vary between the Premier League and the 140 2009/3-4 O P I N I O N
Football League after government pressure saw the former tighten up its rules, whilst those of the latter remain in their 2004 form. However, the Football League’s chairman, Lord Mawhinney, is currently seeking to reach agreement with other interested football bodies in order to correct this imbalance. The Premier League now asks members to publicly declare the names of anyone who owns over 10 per cent of the club. The Football League asks for names of owners of clubs, but does not currently make them public. The Premier League also seeks assurances about where money is coming from to fund a club. An important difference remains that the Premier League applies the test before a takeover is approved whereas the Football League garners information only after a deal has been completed. Premier League ‘fit and proper person test’ - disqualifying events: Under the rules, a person will be disqualified from acting as a director and no club shall be permitted to have any person acting as a director of that club if: • Either directly or indirectly he is involved in or has any power to determine or influence the management or administration of another club or Football League club • Either directly or indirectly he holds or acquires any Significant Interest in a club while he either directly or indirectly holds any interest in any class of shares of another club • He becomes prohibited by law from being a director • He is convicted on indictment of an offence set out in the Appendix 12 Schedule of Offences or he is convicted of a like offence by a competent court having jurisdiction outside England and Wales • He makes an Individual Voluntary Arrangement or becomes the subject of an Interim Bankruptcy Restriction Order, a Bankruptcy Restriction Order or a Bankruptcy Order • He is a director of a club which, while he has been a director of it, has suffered two or more unconnected events of insolvency • He has been a director of two or more clubs or clubs each of which, while he has been a director of them, has suffered an Event of Insolvency. Appendix 12 of the Schedule of Offences: The Schedule of Offences is as follows: Conspiracy to defraud: Criminal Justice Act 1987, section 12 Conspiracy to defraud: Common Law Corrupt transactions with (public) agents, corruptly accepting consideration: Prevention of Corruption Act 1906, section 1 Insider dealing: Criminal Justice Act 1993, sections 52 and 61 Public servant soliciting or accepting a gift: Public Bodies (Corrupt Practices) Act 1889, section 1 Theft: Theft Act 1968, section 1 Obtaining by deception: Theft Act 1968, section 15 Obtaining a money transfer by deception: Theft Act 1968, section 15A + B Obtaining a pecuniary advantage by deception: Theft Act 1968, section 16 False accounting: Theft Act 1968, section 17 False statements by Company Directors: Theft Act 1968, section 19 Suppression of (company) documents: Theft Act 1968, section 20 Retaining a wrongful credit: Theft Act 1968, section 24A Obtaining services by deception: Theft Act 1978, section 1 Evasion of liability by deception: Theft Act 1978, section 2 Cheating the Public Revenue/Making false statements tending to defraud the public revenue: Common Law Punishment for fraudulent training: Companies Act 1985, section 458 Penalty for fraudulent evasion of duty etc: Customs & Excise Management Act 1979, section 170 Fraudulent evasion of VAT: Value Added Tax Act 1994 section 72 Person subject to a Banning order (as defined) : Football (Disorder) Act 2000, Schedule 1 Forgery: Forgery and Counterfeiting Act 1981, section 1 Copying a false instrument : Forgery and Counterfeiting Act 1981, section 2 Using a false instrument: Forgery and Counterfeiting Act 1981, section 3 Using a copy of a false instrument: Forgery and Counterfeiting Act 1981, section Cheating the Public Revenue/ Making false statements tending to defraud the public revenue: Common Law Punishment for fraudulent training: Companies Act 1985, section 458 Penalty for fraudulent evasion of duty etc: Customs & Excise Management Act 1979, section 170 Fraudulent evasion of VAT: Value Added Tax Act 1994, section 72 Person subject to a Banning order (as defined): Football (Disorder) Act 2000, Schedule 1 Forgery: Forgery and Counterfeiting Act 1981, section 1 Copying a false instrument: Forgery and Counterfeiting Act 1981, section 2 Using a false instrument: Forgery and Counterfeiting Act 1981, section 3 Using a copy of a false instrument: Forgery and Counterfeiting Act 1981, section 4 Quite a list! According to Richard Scudamore, the Chief Executive of the English Premier League, their rules on ‘fit and proper persons’ are very strict indeed and go beyond the normal rules in the Companies Act on the qualifications of directors, and criminal offences committed outside the United Kingdom are also to be taken into account. One current case, which will exercising the English Premier League executives and especially their lawyers is the case of the Italian Flavio Briatore, who has been banned for life from Formula One for race fixing in the Singapore Grand Prix and who is part owner of Queens Park Rangers Football Club. I would have thought that there was no case to answer: someone, who cheats in a high profile sport such as Formula One can hardly be described or characterised as a fit and proper person to be involved in a football club. Another case is that of the Russian oligarch billionnaire, Alisher Usmanov, with an allegedly dodgy criminal background, who reputedly is interested in taking over Arsenal Football Club, already having acquired a 15% stake in the Club. Concluding Remarks The only way to clean up football’s financial act and restore some transparency and integrity to the ‘beautiful game’ is to apply the ‘fit and proper person’ rules strictly and without any fear or favour. Is this asking too much when someone comes along with a fistful of dollars to invest? Although I am not holding my breath, given the case of al-Faraj and Portsmouth Football Club takeover, who was waved through even though it appears that he is something of a mystery man - no one seems to know who he actually is and where his money comes from! As a result, some commentators have described this case as a joke! It will be interesting to see what actually happens in practice! ❖ O P I N I O N 2009/3-4 141
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2009/3-4 EU Sports Policy FIFA Tran
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EDITORIAL 2 ARTICLES The Future EU
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The Future EU Sports Policy: Hollow
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Community a new dimension, such as
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Sports Ministers Conference, The Ha
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and 15) that the provisions of Comm
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The Case against the Applicability
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not fall within the wording “tran
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4 See also in support of this argum
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This is not an unrealistic career p
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cerned, the specificity of sport, a
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compensated for the income it could
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A more basic question is what weigh
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Article 17 (6) For a player over 23
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live sports rights in many other co
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equired coverage of 90% is not met.
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letes in any form, even including a
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Article 95 of the CHL Rules governs
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The RFL may declare that a player w
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ices acquired by the clubs in the r
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competition (thereby enhancing the
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Each country of the Kingdom has all
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2.2.The objectionable NAOC intentio
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Sub Rule 29.5 It reads “The area
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To secure the appreciation of CAS i
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5.3 Recognition by the internationa
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however it will all come to the lev
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ICAS International Council for Arbi
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or serious bodily harm. Such prepar
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cumstances arise, a measure can be
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to the amount of regulations in the
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4.1. The relationship between sport
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5. Conclusion In this article I hav
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ing a player. In order to create an
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9 The ‘reserve clause’ gave clu
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In this research, the focus will be
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sports agent will not bargain at ar
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have a dominant position. Thereafte
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3.5.2. Regulations of the KNVB The
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Siekmann, R.C.R., Parrish, R., Bran
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Page 119 and 120: ting market is the fact that most o
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Page 133: lenging time for the industry. As a
Page 137 and 138: CAS Publishes the Decisions Rendere
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Page 155 and 156: extraterritoriality nor a division
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Page 159 and 160: Thus, International Law, once a law
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