Third Party Ownership and Multi-Club Ownership

RIVISTA DI ISSN 1825-6678
DIRITTO ED ECONOMIA DELLO SPORT Vol. XIV, Fasc. 1, 2018
THIRD PARTY OWNERSHIP AND MULTI-CLUB OWNERSHIP:

WHERE FOOTBALL IS HEADING FOR
by Luca Pastore*
ABSTRACT: The present contribution analyses third party ownership and multi-club
ownership. These two practices have been developing in the last few decades, together
with the increasing globalisation and commercialization of the football industry.
Third party ownership and multi-club ownership have been constant subjects of debate
among the stakeholders, because of the possible risk that they might constitute for the
integrity of the competitions.
This paper investigates the origins of these practices, the arising issues and the relevant
regulatory framework in order to shed light on the rationale behind them and on possible
future developments of the matter.
Keywords: Third party ownership – Multi-club ownership – Clubs financing – Integrity

– FIFA Regulations – UEFA Regulations – EU law – Court of Arbitration for Sport –
European Commission – FIFA, UEFA and CAS case law
SUMMARY: 1. Introduction – 2. Third-party ownership – 2.1 Third-party ownership of players:

financial instruments or threats? – 2.2 The FIFA ban on third party ownership – 2.3
Challenges to the FIFA TPO ban – 2.4 TPO: conclusion – 3. Multi-club ownership – 3.1
The evolution of MCO – 3.2 The current regulatory framework – 3.3 A landmark case: the
ENIC plc saga – 3.3.1 The UEFA rule “Integrity of the UEFA Club Competitions:
Independence of the Clubs” – 3.3.2 The proceedings before the Court of Arbitration for
Sport – 3.3.3 The proceedings before the European Commission – 3.3.4 Conclusion: the
ENIC legacy – 3.4 The Red Bull case and the concept of “decisive influence” – 3.4.1 Red
Bull’s entry into football – 3.4.2 Article 5 of the Regulations of the UEFA Champions
League 2015-18 Cycle – 3.4.3 The proceedings before the Adjudicatory Chamber of the
UEFA Club Financial Control Body – 3.4.4 “Decisive interest” in the decision rendered by
the Adjudicatory Chamber of the UEFA Club Financial Control Body – 3.4.5 Conclusion:
the concept of “decisive influence” – 3.5 MCO: conclusion – 4. Final comments
____________________
*
Italian qualified lawyer, of Counsel at Lombardi Associates, Edinburgh (UK).
E-mail: [email protected].
24 Luca Pastore
1. Introduction
The football industry has been constantly growing in the last 30 years. Football
clubs’ revenues derive mainly from match-day income, commercial sources and
broadcasting rights, and have been increasing year by year as a result of the ever
more globalised sport industry, the boom of broadcasting rights’ value (related to
domestic leagues, cups and European club competitions), the multiplying of
commercial sources, and clubs’ investment in privately-owned facilities.
According to Deloitte’s report Football Money League, 1 with a
combined value of EUR 29.9 billion, the aggregate value of Europe’s 32 leading
clubs grew by 14% in comparison to last season: Manchester United, which tops
the list, in the 2015/2016 football season generated EUR 689 million in revenue,
which is over six times the revenue it generated in the 1996/1997 football season.
However, the increasing value of European football goes along with a
polarisation of the wealth, as the continent’s elite clubs leave the rest behind.
As a matter of fact, the Deloitte report shows that clubs belonging to
Europe’s “big five” leagues – Italy, Spain, England, Germany and France – are
pulling away from the rest. This is clearly proven by the fact that even the biggest
clubs in Europe outside the ‘big five’ leagues struggle to reach the top 20 positions.
After the Bosman ruling,2 competition for hiring the top players is wholly
transnational, whereas most of clubs’ revenues – broadcasting rights, game and
season tickets, merchandising, advertising and sponsorship – still depend on the
national and local markets. Therefore, although the cost of creating a team that
will potentially be successful in international competitions tends nowadays to be
comparable all over Europe, clubs’ revenues are quite different from country to
country, even among clubs with similar successful sporting results. Revenues for
football clubs are much higher in the countries of the “big five leagues”, and this
explains why the best and costliest players always end up in those few countries,
whose richest clubs currently dominate continental competitions.
In addition, also within the same league, the financial gap between top
clubs and the rest is rapidly widening. For instance, during the 2015/2016 football
season the Italian Serie A league included among its participating clubs Juventus
FC, which generated EUR 397.9 million in revenue, and Frosinone Calcio, with a
turnover of EUR 31 million.3
Such financial imbalance has been recently investigated by UEFA, in
order to evaluate its consequences on the competitiveness of national and
continental competitions.
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1
Available at: www2.deloitte.com/uk/en/pages/sports-business-group/articles/deloitte-football-
money-league.html (February 2018).
2
Court of Justice, Judgement of 15 December 1995, case C-415/93, in E.C.R. 1995, I-4921.
3
Cf. www.calcioefinanza.it/2017/03/20/bilanci-serie-a-2016-fatturato-costi/ (February 2018).
Third party ownership and multi-club ownership: where football is heading for 25
According to UEFA’s Club Licensing Benchmarking Report 4

(regarding the financial year 2015) the growing financial gap among clubs
represents one of the biggest challenges to football.
Clearly, financial capacity does not win competitions by itself, but it does
enable clubs to spend more on player transfers and wages, enhancing their sporting
competitiveness.
This is proved by the fact that in the last six years, the leading European
leagues, England, Spain, Italy and Germany, have taken every Champions League
semi-finals place, with the only exception being Monaco in the last edition: Real
Madrid has been there every year and Bayern Munich five times, Barcelona and
Atletico Madrid three times each, Chelsea and Juventus twice each, with one
appearance each from Manchester City and Borussia Dortmund.
An emblematic figure provided by UEFA’s Club Licensing
Benchmarking Report is the overall amount of sponsorship and commercial
revenue since 2009: the top 15 clubs in Europe collect EUR 1.5 billion, whereas
the remaining 700 clubs considered by the report have made less than EUR 500
million.
The disparity among clubs is still more evident if we compare European
clubs and the other clubs around the world. According to the Soccerex Football
Finance 100 report 2018 edition,5 aimed at evaluating the financial strength of
football clubs, among the top twenty richest clubs in the world only two of them
are not European (Guangzhou Evergrande ranked third and Los Angeles Galaxy
ranked fourteenth). The first South American club is the Mexican Club de Fútbol
América, which is ranked 40 th; the first Brazilian club is Clube Atlético
Paranaense, ranked 63th, whereas the first Argentinian club is Club Atlético
Boca Juniors, ranked 76th.
Paradoxically, the 2012 UEFA Financial Fair Play regulations’
implementation, aiming to help clubs to keep a sound financial balance have
aggravated this situation. The clubs are strictly forbidden from spending considerably
more than they earn over certain periods of time. Club owners cannot use resources
without control and exceed certain debt limits or accept funds outside the customary
market practices.
Similar rules had also been implemented at a national level: in the United
States for instance, wage caps and transfer regulations prevent MLS club owners
– many of whom are wealthy tycoons – from making large investments that might
create an uncompetitive environment. England’s Premier League implemented a
rule limiting wage bill rises: clubs will be able to increase their wage spend by GBP
7 million each season from 2016/17 to 2018/19. Considering that in the
2016/2017 football season, of the FA league’s 20 clubs 14 spent less than GBP 80
____________________
4
Available at: www.uefa.com/MultimediaFiles/Download/OfficialDocument/uefaorg/Finance/02/
42/27/91/2422791_DOWNLOAD.pdf (February 2018).
5
Available at: www.soccerex.com/insight/articles/2017/manchester-city-pack-most-financial-punch-
on-planet/download-soccerex-football-finance-100-report (February 2018).
26 Luca Pastore
million each, while the “big six” spent more than GBP 120 million (with Manchester
City, Manchester United, Chelsea and Arsenal exceeding GBP 200 million each),
it appears clear that the smaller clubs will never be able to reduce the gap and
upgrade their sporting competitiveness.
Within this framework, which ultimately makes it more difficult for
small/medium size clubs to ascend to the top tier clubs’ competitive level, the
ability of clubs and leagues to generate revenue and to find alternative ways of
financing are key differentiators nowadays and in the years to come.
During the last thirty years, clubs have been developing different strategies
aimed at financing their activities, and in the last few years the chase of new
sources of financing has further spread, especially in medium-size clubs in an
effort to keep pace with the irreversibly growing revenue of the top clubs.
In particular, two specific practises have been increasingly used by
football clubs around the world in order to increase their financial competitiveness:
third-parties’ ownership and multi-club ownership.
The purpose of this paper is to analyse these two practices, the current
regulatory framework, and the relevant jurisprudence in order to shed light on
possible future developments.
2. Third party ownership
The expression “third-party ownership” (“TPO”) indicates the practice whereby

a player is registered with a club, but a third party – either a company or an
individual – has a direct financial interest in his “economic rights”: as a result the
third party, together with or instead of a football club, benefits from transfer fees
every time the player is transferred.
The basis of this practice relies on the conceptual separation of a player’s
federative rights from the economic rights.
The so called “federative rights” of players are the rights binding a
professional player to a club by virtue of an employment contract duly registered
before the respective national association. Such rights can be held only by clubs
and cannot be fractioned or shared with any third party. However, it is commonly
accepted that players’ federative rights also have substantial economic value, which
is normally referred to as the “economic rights derived from the federative right”.
The economic rights could be defined as any financial rights arising from
a negotiation/transfer of the player’s federative rights. Clubs normally held their
player’s economic rights (those under an employment contract). However,
economic rights can also be potentially held by third parties, other than the club.
TPO involves the “economic rights” of a player being owned, wholly or
partially, by a physical or legal person who is not a football club (normally they are
investment funds), whereby in return for a financial investment, investors are entitled
to a percentage of a specific player’s future transfer fee.
Clearly the third-party does not “own the player”, being only entitled to
receive economic benefits from the player’s transfers. Such entitlement derives
from a private law contract usually concluded between the “third-party” and a
football club in order to finance the club or externalise the costs of player
recruitment or obtain an influx of cash when needed. In general, TPO is used by
football clubs in order to diversify their funding sources and increase their
competitive edge.
TPO is implemented through a number of different ways and means.
Investors may purchase a stake in players’ economic value at an early
stage in their careers: this often involves covering the costs associated with the
training and housing of players at a club’s academy. This format is a very speculative
model, contingent on a player developing to a level where they could command a
transfer fee substantial enough for the TPO investor to realise a profit on their
share of the players’ economic rights.
Alternatively, investors may finance a club that wishes to sign a player
registered with another club, but does not have the necessary financial resources
to pay the transfer fee: this is the most commonly used TPO model. The investor
pays part or all of the transfer fee in order to acquire a percentage of the player’s
economic rights. The standard percentage of economic rights transferred to the
third party ranges between 30% and 70%. This TPO model is the result of a joint
venture between the club and the investor, in which parties share the costs of the
investment as well as the future revenues deriving from the future transfer of the
player: the risk/reward is therefore shared by investors and clubs based on the
percentage of ownership of the transferred player’s economic rights. However, in
many cases that have taken place in recent years, the investors tend to minimise
the risks through a guaranteed minimum return, which in general terms is similar
to the amount invested.
To be less speculative, investors can also look for a club in need of an
immediate influx of cash, but does not wish to weaken their playing squad through
sales. TPO investors could purchase a percentage of ownership in an established
player and the club receives cash which it could reinvest into its playing squad or
infrastructure, realising equity in their assets without diminishing the quality of
their squad.
In addition to the standard TPO models described above, there are other
legal/contractual solutions, which cannot strictly be considered TPO, but under
which a club owning 100% of a player’s federative rights would not be the sole
beneficiary of the economic rights arising from that player’s future transfer.
An interesting example of these alternative models was the so called
“Accordi di partecipazione” (commonly known as “comproprietá”) in Italy,
which allowed two clubs to share the profits arising from a player’s future transfer.
Such joint-ownership was permitted by article 102-bis of the FIGC internal
organisational rules, according to which a club could transfer one of its players to
another club in exchange for an interest in the player’s economic value.6
____________________
6
The original version of art. 102-bis, par. 1 of Italian NOIF (now repealed) reads: “Una società, che
ha acquisito il diritto alle prestazioni sportive di un calciatore professionista per effetto di cessione
28 Luca Pastore
This model represented a club/club co-ownership scenario, and it had

the peculiarity of being governed by the Italian FIGC rules: since the parties entering
into this kind of agreement were clubs and not third parties unrelated to football,
this practice was considered acceptable to the football governing bodies.
However, following the debate regarding the well-known Tevez and
Mascherano transfers to the English club West Ham United FC, which lead the
English FA first and then FIFA to ban TPO (see para. 2.2. below), on May 2014
the Italian FIGC abolished the “Accordi di partecipazione”.
TPO models offer a number of benefits especially to smaller football
clubs, who might want to share the financial risks associated with the purchase of
a player: with the increasing economic dominance of a relatively small number of
clubs, TPO becomes a source of financial support for clubs to compete in the
transfer market. And this is true not only for small clubs, but also for major clubs
that struggle to keep their place in the elite of football. An emblematic example of
this was FC Porto: the club’s annual accounts for the period ending 22/7/2013
showed that the club only owned the complete economic rights of seven players
out of twenty-nine registered in their squad.7
The central role played by TPO as financial instruments has however
been challenged by the increasing number of issues related to the compatibility of
such instruments with the protection of the sporting values and, in particular the
integrity of football.
2.1 Third-party ownership of players: financial instruments or threats?
The first shadow on TPO derives from the identity of the investors and the origin
of the money involved.
As said above, third parties include investment funds, companies, agents
and private investors. However, very often the identity of the real beneficiaries is
not known, as the investment is made through secretive offshore entities.
This circumstance by itself raises doubts about the compatibility of this
practice with the integrity of competitions, given that the same investor might own
several players in different clubs participating in the same competition and exercise
some kind of influence on players or clubs.
Moreover, TPO contracts could be sold to other entities or other secretive
funds, without any control from the national or international football bodies:
companies may therefore effectively own or control various players at different
clubs and could move them around in a way that might potentially influence the
result of a competition. Ultimately, this lack of transparency over the “ownership
____________________
definitiva di contratto, può contemporaneamente stipulare un accordo con la società cedente, che
preveda un diritto di partecipazione di quest’ultima, in misura paritaria, agli effetti patrimoniali
conseguenti alla titolarità del contratto”.
7
Available at: www.just-football.com/2013/08/porto-third-party-ownership/ (February 2018).
of players” might entail risks for the integrity of the competitions or, at least, it
might jeopardize the public perception of the fairness of competitions.
Such issue leads to another major matter related to TPO: the control
enforceable by investors on clubs, which could be a potential intrusion of a third-
party in the decisions of football clubs and players, i.e. third-parties could have an
undue influence on the management of the teams and the players’ careers.
This influence may be provided by specific provisions contained in the
TPO agreement (such as free agency provisions – which prevent the club from
releasing the player as a free agent in exchange for no compensation – or compulsory
sale provisions – which oblige the club to accept a transfer offer above a certain
value) or by an active interference in the transfer policies of the club.
Third-parties might also take illegitimate upper hand on clubs in financial
difficulty, in order to take control of their players and influence their transfer policies.
In light of the above, it might also be argued that far from being a mere
financial means for clubs, the use of TPO is an opaque, financing technique used
to circumvent the UEFA Financial Fair Play regulations and to prop up clubs that
are persistently in financial troubles.
In addition to the above, TPO also undermines the contractual stability
and training of players: as a matter of fact, TPO can only create revenues by the
sale of the clubs’ federative rights of a player to another club through a transfer.
Thus, by its very nature, TPO depends on the club prematurely ending its
employment contract with the player (usually after the 2nd or 3rd season). Third
parties’ ownership have therefore an inherent interest in moving players as often
as possible before the end of the employment contracts, in order to give value to
their investment. Unsurprisingly, a lot of third party investors or investment
companies are linked to player agents or companies owned by agents.
By means of TPO, player transfers could be driven by third-party investors
purely interested in profit unlikely to enhance training, and this might determine
serious consequences on the professional development of players: in fact, clubs
might rely upon short-term financing strategy rather than investing in long-term
training programmes. Moreover, players’ careers could be determined by mere
commercial decisions, without taking into account the professional sporting and
personal development of players.
Finally, ethics are concerned: can it be morally tolerable for someone to
own a share of an economic right personally attached to a player? UEFA former
president Michel Platini defined TPO as a type of modern “slavery”,8 whereas
FIFA President Gianni Infantino declared that it is simply unacceptable for
companies to “trade” economic rights to people.9
For all these reasons, FIFA deemed the practice to be a threat to the
integrity of football and in December 2014 banned TPO, subject to a transitionary
____________________
8
Available at: www.bbc.co.uk/sport/football/31905811 (February 2018).
9
Available at: www.soccerex.com/insight/articles/2013/third-party-ownership-has-no-place-in-
football-infantino (February 2018).
30 Luca Pastore
period.10 This ban came into force just few months later, on 1st May 2015; however,
the path that led to this ban was much longer.
2.2 The FIFA ban on third party ownership
Although common practice in South America for a long time, the issue of third-
party ownership was brought under the spotlight in Europe by the transfers of
Carlos Tevez and Javier Mascherano to West Ham United from the Brazilian club
Corinthians in 2006.
The economic rights of the two players were owned by a number of
parties, with Tevez’s rights owned by Media Sports Investments (“MSI”) and Just
Sports Inc, while Mascherano’s rights were jointly owned by Global Soccer
Agencies and Mystere Services Ltd.11
At that time, there was no outright ban on TPO, but West Ham was
found culpable of breaching rules U6 and U18 of the Premier League regulations,12
which forbade third-party from having material influence over the decision making
of clubs. In fact, according to the TPO contract signed in the Tevez deal, the third-
party investor had the exclusive power to move the player on to another club and
to decide the fee involved, in clear breach of the Premier League rules.
West Ham were ultimately fined £5.5m (for not disclosing all of the
documents relating to the transfers): however, the relevance of the issue went
beyond this specific case.
The revelation that players’ “economic rights” could be “owned” by
investors, shocked English football, where the transfer system was regarded as a
valuable means of distributing money from rich to small clubs, and raised a debate
about the legitimacy of TPO, which ultimately lead the Premier League’s clubs to
prohibit third-party ownership of their own players in 2008.
As a Premier League spokesman explained13 “The clubs decided that
third-party ownership was something they did not want to see. It raises too
many issues over the integrity of competition, the development of young
players and the potential impact on the football pyramid. It was felt the Premier
League was in a position to take a stand on this. No one wants to see what
has happened to club football in South America repeated over here”.
Because of the Tevez and Mascherano transfers’ widespread clamour,
the English Football Association banned TPO at the beginning of the 2008/2009
football season.
____________________
10
Available at: www.fifa.com/governance/news/y=2014/m=12/news=ethics-executive-committee-
unanimously-supports-recommendation-to-publ-2494723.html (February 2018).
11
Available at: www.theguardian.com/sport/david-conn-inside-sport-blog/2009/jul/14/
manchestercity-carlos-tevez (February 2018).
12
Regulation U6 stated: “No person may either directly or indirectly be involved in or have any
power to determine or influence the management or administration of more than one club.” Regulation
U18 read: “No club shall enter into a contract which enables any other party to that contract to
require the ability materially to influence its policies or the performance of its teams in league
matches”.
Following the fallout from these cases, FIFA also investigated TPO: in
2007, it set up a working group under FIFA’s Players’ Status Committee with a
mandate to consult all relevant stakeholders and to analyse possible regulatory
options.
As a result, in 2008 FIFA introduced article 18bis of the Regulations on
the Status and Transfer of Players (FIFA RSTP),14 titled Third-party influence
on clubs, which read: “No club shall enter into a contract which enables any
other party to that contract or any third party to acquire the ability to influence
in employment and transfer-related matters its independence, its policies or
the performance of its teams. The FIFA Disciplinary Committee may impose
disciplinary measures on clubs that do not observe the obligations set out in
this article”.
However, this first attempt of FIFA to regulate TPO was not successful
given that this provision, which was the result of a compromise among the
stakeholders, was too general to be effective.
As a matter of fact, during the years following its introduction, art. 18bis
FIFA RSTP was easily deceived by investors. This called for the necessity of a
total ban, which was decided by FIFA’s Executive Committee on September 2014
and implemented by means of the Circular Letter 1464 of 22nd December 2014.15
In particular, FIFA first provided a definition of “third party”, described
as “a party other than the two clubs transferring a player from one to the
other, or any previous club, with which the player has been registered”.
Moreover, it provided a new version of article 18bis, para. 1 FIFA RSTP,
stating that “No club shall enter into a contract which enables the counter
club/counter clubs, and vice versa, or any third party to acquire the ability
to influence in employment and transfer-related matters its independence, its
policies or the performance of its teams”.
In addition, FIFA introduced art. 18ter FIFA RSTP titled Third-party
ownership of players’ economic rights,16 which prevents players and clubs from
____________________
13
Available at: www.theguardian.com/football/2008/dec/10/premierleague (February 2018).
14
Available at: http://resources.fifa.com/mm/document/affederation/administration/02/92/54/37/
regulationsonthestatusandtransferofplayersdez2017webeng_neutral.pdf (February 2018).
15
Available at: www.fifa.com/mm/document/affederation/administration/02/49/57/42/
tpocircular1464_en_neutral.pdf (February 2018).
16
Art. 18ter FIFA RSTP reads: “No club or player shall enter into an agreement with a third party
whereby a third party is being entitled to participate, either in full or in part, in compensation
payable in relation to the future transfer of a player from one club to another, or is being assigned
any rights in relation to a future transfer or transfer compensation. The interdiction as per paragraph
1 comes into force on 1 May 2015. Agreements covered by paragraph 1 which predate 1 May 2015
may continue to be in place until their contractual expiration. However, their duration may not be
extended. The validity of any agreement covered by paragraph 1 signed between 1 January 2015
and 30 April 2015 may not have a contractual duration of more than 1 year beyond the effective
date. By the end of April 2015, all existing agreements covered by paragraph 1 need to be recorded
within the Transfer Matching System (TMS). All clubs that have signed such agreements are required
to upload them in their entirety, including possible annexes or amendments, in TMS, specifying the
details of the third party concerned, the full name of the player as well as the duration of the
32 Luca Pastore
concluding agreements whereby a third party is entitled to receive financial benefits

or any other right in relation to a player’s transfer or a transfer compensation. By
means of this provision, FIFA definitively banned TPO. In addition, it established
the obligation to record in the FIFA Transfer Matching System (TMS) all of the
TPO agreements existing at the time of the ban being imposed, and includes art.
18ter FIFA RSTP among the provisions binding at national level, to be included in
each national association’s regulations.
The rationale behind Articles 18bis and 18ter is that no pressure
whatsoever should be exerted by third parties upon clubs and players to make a
transfer.
It must be noted that prior to the FIFA ban, the TPO contracts passed
the scrutiny of the Court of Arbitration for Sport (hereinafter “CAS”), in a landmark
award rendered at the end of a dispute between Doyen Sport Investments -a
Maltese private equity fund specialised in financial operations and among the main
global investors in TPO- and Sporting Clube de Portugal.17
In particular, in 2014 the Portuguese club had unilaterally terminated the
TPO contract concluded with Doyen Sport Investments, in order not to pay the
amount resulting from the transfer of the player Marcos Rojo to Manchester United
in 2014.
Sporting Clube de Portugal had argued before CAS that the contract
was immoral and that it constrained its sporting policy as the club had been forced
to transfer the player. Nevertheless, CAS rejected these “moral” arguments and
privileged the contractual freedom of the parties: as a result Sporting Clube de
Portugal was condemned to pay Doyen Sport Investments the amounts due in
compliance with the TPO contract.18
The validity of TPO contracts from the perspective of Swiss law was
finally marked by the Federal Supreme Court of Switzerland, which in December
2016 ended the Rojo case by confirming the CAS award.19
2.3 Challenges to the FIFA TPO ban
The imposition of the TPO ban determined different reactions among the
stakeholders: the general public welcomed such a decision as a necessary step to
protect the authenticity of football from ruthless investors.
However, the ban has also been strongly opposed, especially in countries
where TPO was an important financing mechanism for clubs.
____________________
agreement. The FIFA Disciplinary Committee may impose disciplinary measures on clubs or players
that do not observe the obligations set out in this article”.
17
CAS 2014/O/3781 & 3782, Sporting Clube de Portugal Futebol SAD v. Doyen Sports Investment
Limited, Award of 21 December 2015.
18
More details about this case on G. MARINO and L. SMACCHIA, Il caso Rojo e la validità degli
accordi di TPO, in Riv. Dir. Ec. Sport, vol. 3/2016.
19
Judgment 4a_116 / 2016 of 13 December 2016.
In particular, the central role of TPO for the sustainability of the football
industry in Spain and Portugal led the Liga de Fútbol Profesional (LFP) and
Liga Portuguesa de Futebol Profissional (LPFP), the Spanish and Portuguese
football leagues, to file in February 2015 a complaint before the European
Commission, challenging the compatibility of the TPO ban with EU competition
law.20
The leagues argued that the ban infringed Article 101 of the Treaty on
the Functioning of the European Union21 concerning the prohibition of anti-
competitive agreements, and Article 102,22 which prevents abuse of a dominant
position, claiming that FIFA was abusing its dominant position by introducing such
a ban.
According to the applicants, the ban also contravened the fundamental
freedom of establishment, the freedom to provide services, the free movement of
workers, and the free movement of capital.
In April 2015, a similar complaint was filed by Doyen Sport Investments.
In turn, UEFA and FIFPro launched a joint legal action with the European
Commission, asking it to endorse FIFA’s decision to outlaw TPO.23
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20
Available at www.laliga.es/noticias/las-ligas-espanola-y-portuguesa-denuncian-ante-la-comision-
europea-la-prohibicion-de-los-tpo-de-la-fifa (February 2018).
21
Article 101 TFEU: “1. The following shall be prohibited as incompatible with the internal market:
all agreements between undertakings, decisions by associations of undertakings and concerted
practices which may affect trade between Member States and which have as their object or effect the
prevention, restriction or distortion of competition within the common market, and in particular
those which: (a) directly or indirectly fix purchase or selling prices or any other trading conditions;
(b) limit or control production, markets, technical development, or investment; (c) share markets
or sources of supply; (d) apply dissimilar conditions to equivalent transactions with other trading
parties, thereby placing them at a competitive disadvantage; (e) make the conclusion of contracts
subject to acceptance by the other parties of supplementary obligations which, by their nature or
according to commercial usage, have no connection with the subject of such contracts. 2. Any
agreements or decisions prohibited pursuant to this Article shall be automatically void. 3. The
provisions of paragraph 1 may, however, be declared inapplicable in the case of: - any agreement
or category of agreements between undertakings; - any decision or category of decisions by
associations of undertakings; - any concerted practice or category of concerted practices, which
contributes to improving the production or distribution of goods or to promoting technical or
economic progress, while allowing consumers a fair share of the resulting benefit, and which does
not:(a) impose on the undertakings concerned restrictions which are not indispensable to the
attainment of these objectives; (b) afford such undertakings the possibility of eliminating competition
in respect of a substantial part of the products in question.”
22
Article 102 TFEU: “Any abuse by one or more undertakings of a dominant position within the
internal market or in a substantial part of it shall be prohibited as incompatible with the internal
market in so far as it may affect trade between Member States. Such abuse may, in particular,
consist in: (a) directly or indirectly imposing unfair purchase or selling prices or other unfair
trading conditions; (b) limiting production, markets or technical development to the prejudice of
consumers; (c) applying dissimilar conditions to equivalent transactions with other trading parties,
thereby placing them at a competitive disadvantage; (d) making the conclusion of contracts subject
to acceptance by the other parties of supplementary obligations which, by their nature or according
to commercial usage, have no connection with the subject of such contracts”.
23
Available at: www.uefa.com/insideuefa/stakeholders/players-unions/news/newsid=
2230203.html?redirectFromOrg=true#/ (February 2018).
34 Luca Pastore
A few months later, in June 2015, Doyen Sports and the Belgian club
RFC Seraing –which entered a TPO agreement on 30th January 2015 stipulating
that the club transferred the economic rights of three players to Doyen Sports
against a sum of EUR300’000- challenged the TPO ban before Brussels’ First
Instance Court.
In particular, the claimants requested provisional measures preventing
FIFA from putting into force the ban. They also demanded reference to the
European Court of Justice on whether the TPO ban was lawful.
The judge noted that TPO endangered the integrity of competitions, and
that the previous attempt made by FIFA to limit TPO through art. 18-bis of the
FIFA RSTP was proven to be ineffective. Therefore, the Court concluded that the
likelihood that FIFA’s TPO ban would fail the tests of proportionality and necessity
had not been proven with the force necessary to justify the application of provisional
measures (i.e. the essential condition of fumus boni iuris had not been met).
As a result, the Brussels Court of First Instance rejected the demand for
provisional measures to prevent the TPO ban from entering into force in its order
dated 24 July 2015: for the first time a judicial authority adopted a legally binding
(though provisional) opinion on the potential compatibility of the TPO ban with EU
competition law.
On September 2015, the Belgium club RFC Seraing was also sanctioned
by the FIFA Disciplinary Committee for having breached Art. 18bis and 18ter of
the FIFA RSTP on TPO: FIFA condemned RFC Seraing to a transfer ban for 4
transfer windows and a fine of CHF150’000.
The club challenged the decision with FIFA’s Appeal Committee, which
however rejected the appeal and confirmed the original decision. Eventually, Seraing
appealed this decision to CAS, which decided to uphold the sanctions imposed by
FIFA. 24
In particular, CAS observed that TPO “[…] gives rise to a number of
risks notably: risks linked to the opacity of investors who are uncontrolled
and escape all form of regulation from football governing bodies; risks to
players’ rights and professional activities due to the speculative interests on
their transfer; risks of conflicts of interest from the fact that the same TPO
provider may hold interests in a number of clubs in the same competition that
could result in the manipulation or fixing of matches [...]”.25
Thus, CAS deemed legitimate the objectives pursued by the FIFA ban
(i.e. the preservation of contractual stability; the preservation of the independence
and autonomy of clubs in the management of their recruitment policy; the securing
of the integrity of football and preservation of the loyalty and equity of competitions;
the prevention of conflicts of interests and the securing of transparency in the
transfer market)26 and decided that the ban was proportionate to these objectives.
____________________
24
CAS 2016/A/4490 RFC Seraing v. FIFA, award available at www.tas-cas.org/fileadmin/
user_upload/Sentence_4490__FINALE__internet.pdf (February 2018).
25
CAS 2016/A/4490 RFC Seraing v. FIFA, para. 108.
26
CAS 2016/A/4490 RFC Seraing v. FIFA, para. 101.
Also, the CAS Panel clarified that the TPO ban has limited effects on
the freedom to invest in football, excluding only certain types or modalities of
investing.27
In light of the above, CAS considered the sanctions imposed by FIFA
upon Seraing to be justified, given that the TPO contract concluded with Doyen
had clearly deprived the club of its independence, in particular where the club
committed itself to accept any transfer offer equal or above a certain amount and
to inform Doyen Sports of any negotiations relating to the relevant players.
The Belgian club Seraing then brought the matter to the Swiss Federal
Supreme Court, which however confirmed the findings of the CAS award, in the
decision issued on 20th February 2018 (4A_260/2017).28
In November 2017, the European Commission rejected the complaint
lodged by Doyen on April 2015, with similar arguments used by CAS in CAS
2016/A/4490 RFC Seraing v. FIFA, whereas the complaint lodged by the Spanish
and Portuguese leagues is still under assessment.
Other complaints have been lodged before national courts in Spain and
Belgium: however, the consistent jurisprudence of CAS, the European Commission
and the Belgium Court, together with the growing legal and political consensus for
the TPO ban, suggests that the ban legitimacy path has been drawn for future
decisions.
2.4 TPO: conclusion
The FIFA decision to put a definitive end to the use of TPO in football raised
several controversial arguments upon its application, and still raises doubts about
its convenience and effectiveness in some stakeholders.
As a matter of fact, the use of TPO has enabled several clubs to finance
their activities, and made it possible for small/medium-sized clubs to maintain/
enhance their competitiveness against their “bigger” rivals.
Such practice has been largely used in South America and in several
different countries around the world for a long time; however, only in 2006 did it
focus the attention of stakeholders, after the transfers of Tevez and Mascherano
to West Ham United.
FIFA reacted to this possible threat to the integrity of competitions initially
implementing a generic and somewhat ineffective provision – Art. 18bis FIFA
RSTP – and afterwards imposing a total ban of TPO. In my opinion, the leap
between these two extremities has been hasty and weakly justified.
As a matter of fact, in light of the current socio-economic context of the
football industry, and considering the financial difficulties that clubs all over the
____________________
27
CAS 2016/A/4490 RFC Seraing v. FIFA, paras. 109-112.
28
The decision 4A_260 / 2017 is available at: www.bger.ch/ext/eurospider/live/de/php/aza/http/
index.php?highlight_docid=aza%3A%2F%2Faza://20-02-2018-4A_260-2017&lang= de&zoom=
&type=show_document (March 2018).
36 Luca Pastore
world are experiencing together with the increasing gap between a few rich clubs
and the rest, the total ban of TPO imposed by FIFA appears to be inconvenient at
least, since it cancels an important source of external funding to clubs which are
sometime in desperate need.
In my view, FIFA could have taken a more positive approach in regulating
the matter in order to suppress the unethical aspects while fostering the competitive
balance of clubs and therefore create a more attractive and legitimate product.
There are a number of reasons why the “regulatory-solution” would
have been preferable: first and foremost, an appropriate regulation of TPO would
have been a more holistic approach to the issue, which would have ultimately
attenuated the disparity of effects produced within the member associations.
In fact, FIFA gathers together 211 football associations worldwide: each
of them has different clubs’ financing models and regulations in place and the
absolute ban imposed by FIFA had a devastating impact on a large number clubs
that had legitimately based their business model on TPO. As said above, South
American clubs tend to resort to the sale of players as a key income source: prior
to the implementation of the TPO ban they commonly sold a percentage of players’
economic rights to obtain quicker alternative finance mechanisms for their daily
operations. On the contrary, the TPO ban did not affect in any way clubs that at
that time run different financial models.
Moreover, the absolute global ban imposed by FIFA appears still more
unreasonable in a system whereby the huge disparity among clubs is not attenuated
by structural measures aimed at contrasting the clubs’ need for ever-increasing
investments in order to be competitive.
As a matter of fact, on one side the spending on transfer fees grows
each year with an exponential trend, following the increasing income of the top
clubs (according to the TMS 2018 Global Transfer Market Report,29 in 2017 the
number of international transfers increased by 6.8% compared to 2016, whereas
the total spending increased by 32.7% compared to the previous year); however,
on the other side the TPO ban imposed by FIFA reduces the financing sources for
small-medium size clubs, and for all those clubs that do not have direct access to
the beneficial effects of the football industry’s internationalisation.
In light of the above, the TPO ban deepens the economic inequality
among clubs, with the top tier clubs benefitting from a privileged bargaining position.
As a matter of example, a South American club cannot rely anymore on an investor
buying 50% of a talented player’s economic rights to hold on to the player a few
more years, waiting for the player’s development. Even if the club knows that the
player’s value will double or triple in a very short period, in case of an offer from
a European club it won’t be in the position to refuse such an offer without taking
a huge gamble.
____________________
29
TMS 2018 Global Transfer Market Report is available at: www.fifatms.com/data-reports/reports/
(February 2018).
For all these reasons, although the rationale that led FIFA to enact the
TPO ban is totally legitimate and embraceable, regulating TPO through the
introduction of clear and strict boundaries together with the imposition of
transparency and disclosure obligations would have been a better alternative than
an outright ban.
3. Multi-club ownership
In times of advanced internationalisation and commercialisation of sports, football

clubs are developing new business models and adopting strategies borrowed from
other industries in order to expand their network and maximise their income.
Within this framework, a particular model that has become more and
more common is the so called “multi-club ownership” (hereinafter, MCO), defined
as the situation where two or more football clubs are owned by the same entity.
There are a number of reasons that make MCO attractive: it brings
broader network and results in profitable synergies from both a sporting (e.g.
improve scouting networks) and business perspective (e.g. sharing staff, mutualise
sponsorship efforts, cost efficiencies, sharing expertise and best practices, brand
awareness).
What is more, in a market where football players are more valuable than
ever, MCO allows clubs to recruit talented players at low cost, facilitating their
development in smaller clubs.
The practice of a larger company acquiring or merging with smaller
companies in order to benefit from broader networks and expertise is very common
in every market in which synergies play an important role in companies’ growth.
As far as football is concerned, the MCO practice has become increasingly common
over the last twenty years, with a dramatic increase in the last five years.
3.1 The evolution of MCO
MCO is not a recent phenomenon. From 1992 to 2000, Mr Calisto Tanzi’s Parmalat
controlled the Italian club Parma AC and the Brazilian club Palmeiras. Both clubs
experienced a successful decade under the control of the Italian multinational
company, but afterwards both club were dragged into the throes of the financial
scandal that run over Parmalat in 2002. Another major example of MCO in the
nineties concerns the English company ENIC plc.
ENIC purchased large amounts of shares in several football clubs including
Glasgow Rangers FC, SK Slavia Prague, AEK Athens FC, Vicenza Calcio, FC
Basel and Tottenham Hotspur. However ENIC was not interested in the football
side of the business, given that it only invested in the shares hoping for a rise, and
it did not control the day-to-day management of the clubs owned.
ENIC ownership on such clubs arose the first issues in relation to MCO,
and eventually prompted a football institution – UEFA – to consider for the first
38 Luca Pastore
time the impact of MCO on competitions (see below para. 3.3); however, the
ENIC case did not have a real impact on the working of the football industry. The
circumstance that changed everything in this respect was the entry by the Pozzo
family into the football industry.
In the mid-eighties, the Italian businessman Giampaolo Pozzo purchased
Udinese Calcio.30 After an initial difficult period between Serie A and Serie B, Mr
Pozzo and his son Gino developed a peculiar practice, which ultimately resulted in
a successful way to stabilise the club in the top Italian league. They set up a huge
worldwide scouting network, the first of its kind, to find young talented footballers
before other clubs. They focused on scouting undervalued markets such as Africa,
Eastern Europe and South American countries such as Colombia and Chile. Through
this system, Udinese Calcio discovered many talented players (among others, Balbo,
Sensini, Bierhoff, Amoroso, Appiah, Muntari, Handanovic, Sanchez, Isla, Inler,
Asamoah, Benatia) that helped the club to reach remarkable success, not only on
the field, but also off the field: in fact, the policy of the club was to sell these
players at the most profitable moment, and then invest part of the money gained
into more unknown players.
However, Udinese Calcio was recruiting too many players and not all of
them could play in the first team in order to display their potential: thus, the Pozzo
family decided to buy another club in a different country, in order to develop more
players and maximise the effectiveness of their successful system. Hence, in
2009 the Pozzo family purchased Granada CF (recently sold to Chinese firm
Desport) at that time a third tier Spanish club in financial difficulty.
During the first season, ten players were temporarily transferred from
Udinese to Granada, with the latter being promoted to the second division at the
end of the season. In the second season, six more players joined from Udinese
and Granada got promoted to the Spanish top division.
The success of the model experimented with Granada led the Pozzo
family to expand it by buying in 2012 the English club Watford FC.
At that time, the club competed in the Championship, the English second
division: adopting a system similar to the one used with Granada (in the first season
under the new owners, 12 players arrived on loan from Udinese and two from
Granada), Watford got promoted to the Premier League after just three seasons.
However, the transfer on loan of 14 players from Udinese and Granada
to Watford had been met with considerable opposition and prompted a change to
the Football League’s rules in order to prevent a mass influx of foreign players on
loan to a single team.
Ultimately, by means of this network of clubs, players were first acquired
at low cost, then loaned between ‘sister clubs’ and later sold at a premium price.
Also, the clubs’ sporting results profited from this network, with both
Granada and Watford achieving promotion respectively to La Liga and the Premier
____________________
30
Cf. www.byfarthegreatestteam.com/posts/definitive-guide-multi-club-ownership-episode-1-
introduction-pozzos (February 2018).
League, and with Udinese Calcio consistently in the middle of the Serie A table
(reaching 3rd place in the 2011/2012 football season).
Following the Pozzo family’s successful business model, several other
clubs have adopted similar strategies and today MCO has become a common
practice in football.
The Belgian millionaire businessman Roland Duchâtelet is the main
shareholder of five clubs: Charlton Athletic (England), Carl Zeiss Jena (Germany),
AD Alcorcón (Spain), Sint-Truiden (Belgium) and Újpest FC (Hungary).
Also the Malaysian businessman Vincent Tan invested in football and
now he owns the Welsh club Cardiff City FC, the Bosnian Fudbalski klub Sarajevo,
the Belgian Koninklijke Voetbalclub Kortrijk and he is also co-owner and director
of the American Los Angeles FC.
Last summer, the leading travel retail group based in Bangkok “Thai
King Power International Group” made a new acquisition, purchasing the Belgian
club Oud-Heverlee Leuven, which became the second club of the group after the
English club Leicester City.
Another relevant group is the Chinese “Suning Holdings Group”, owned
by Mr Zhang Jindong, which in June 2016 purchased the majority of the shares of
Inter Milan (Italy) for an estimated EUR270 million, after the acquisition of another
club, Jiangsu Suning (China).
A peculiar model of MCO has been developed by the Austrian company
Red Bull, which uses football clubs as part of its innovative marketing strategy to
promote its brand (see below, para. 3.4). To date, Red Bull owns RB Leipzig
(Germany), Red Bull Salzburg (Austria), Red Bull Brazil (Brazil) and New York
Red Bulls (USA).
Also in South America, MCO took root and, in particular, in Mexico: the
“Salinas Group” of the billionaire businessman Ricardo Salinas, owns the Atlas of
Guadalajara and the Monarcas de Morelia, while “Grupo Pachuca”, one of the
most important business groups in Mexico, owns the Mexican Club de Fútbol
Pachuca, Club Deportivo Mineros de Zacatecas, Club León, Tlaxcala Fútbol Club,
and the Chilean club Everton de Viña del Mar. Also the Mexican businessman and
film producer Jorge Vergara acquired football clubs and now he owns the Costa
Rican club Deportivo Saprissa and the Mexican Club Deportivo Guadalajara. He
also founded the Chivas USA, a club based in California that was a subsidiary of
the Club Deportivo Guadalajara, sharing common ownership and branding. However,
in 2014 the Major League Soccer purchased Chivas USA from Vergara and
rebranded the club.
There are also clubs that have acquired stakes in other clubs: Atlético
Madrid (Spain) invested in RC Lens (France) and Club Atlético de San Luis
(Mexico); ACF Fiorentina (Italy) in Pune City (India); AS Monaco (France) in
Cercle Brugge (Belgium); Ajax (The Netherlands) in Ajax Cape Town (South
Africa).
However, today the ultimate example of MCO is represented by the
City Football Group, which has been taking MCO to a global scale.
40 Luca Pastore
The City Football Group is a holding company under the ownership of

Abu Dhabi United Group that administers several football clubs around the world:
Manchester City FC (England), New York City FC (USA), Melbourne City FC
(Australia), Yokohama F. Marinos (Japan) and Club Atlético Torque (Uruguay).
However, the origin of the City Football Group does not lie in Abu Dhabi nor any
other city hosting a club belonging to the group, but in Barcelona.
Mr Ferran Soriano, the current Chief Executive Officer at the City Group,
in 2003 was elected Finance Director at FC Barcelona. During his time at the
Catalan club, he was influenced by the work of sports academic Stefan Szymanski,31
which showed that the best predictor of a club’s success was the wage bill of its
playing squad.
As a result, Mr Soriano embraced a new business model for the
development of the club: “If you want a champion team, a team with a chance
of regularly winning championships, then you need to work consistently to
have a big club that generates enough revenues to be able to sign the best
football talent available”.32
To do so, Mr Soriano followed the commercial model first adopted by
Manchester United and decided to increase the club’s revenues by the
internationalisation of the brand. In particular, he sought sponsorship deals outside
its home market and went on the road for pre-season exhibition tours around
North America and Asia. As a result, between 2003 and 2008 FC Barcelona FC
almost trebled its revenues, from EUR123 million to EUR309 million, cutting the
gap with the top clubs Manchester United and Real Madrid. But he wanted to go
further.
Mr Soriano pointed the franchise model of the American multinational
mass media and entertainment conglomerate “The Walt Disney Company” and
suggested a similar formula could be applied to sport: “At Disney you can
franchise out across the world, make films in different languages, build theme
parks. Multi-club ownership is the realisation of this Walt Disney view of
football; where clubs are entertainment franchises, where football is a form
of content”. 33
However, FC Barcelona rejected such business model and Mr Soriano
left the club in 2008. Four years later he joined Manchester City FC as chief
executive, where he immediately started implementing his new strategy, with the
results that we see today.
The commercial opportunities offered by the application of this business
model to football are countless: it is therefore not surprising that similar models
____________________
31
Cf. S. SZYMANSKI AND T. KUYPERS, “Winners and Losers: the business strategy of football”, Viking,
1999.
32
F. SORIANO, “Goal: The Ball Doesn’t Go In By Chance: Management Ideas from the World of
Football”, Palgrave Macmillan, 2011, 4.
33
“Disneyfication of clubs like Manchester City keeps showing benefits”, The Guardian, 31 August
2017.
have been increasingly adopted in the last few years, and in light of the clubs’
need to generate revenue and find alternative strategies of financing, it is plausible
that MCO will increase further on a drastic scale over the next few years.
However, beneath the surface there are a number of challenges that
need to be addressed by the football governing bodies, such as the protection of
each club’s autonomy when the club’s interest comes at the expense of a broader
corporate body, the protection of integrity and credibility of competitions, and the
delimitation of a legitimate cooperation among related clubs.
3.2 The current regulatory framework
To date there are no specific regulations on MCO at FIFA level. The reason why
FIFA does not regulate such models lies in the fact that clubs are not direct members
of FIFA, being only affiliated to member associations. In fact, article 20, para. 1 of
the FIFA Statutes34 reads “Clubs, leagues or any other groups affiliated to a
member association shall be subordinate to and recognised by that member
association […]”.
The same article, however, under paragraph 2 explicitly provides an
obligation for the member associations aimed at ensuring the integrity of the
competitions by exercising a strict control over clubs’ ownership:
“Every member association shall ensure that its affiliated clubs can take all
decisions on any matters regarding membership independently of any external
body. This obligation applies regardless of an affiliated club’s corporate
structure. In any case, the member association shall ensure that neither a
natural nor a legal person (including holding companies and subsidiaries)
exercises control in any manner whatsoever (in particular through a majority
shareholding, a majority of voting rights, a majority of seats on the board of
directors or any other form of economic dependence or control, etc.) over
more than one club whenever the integrity of any match or competition could
be jeopardised”.
Thus, by means of this article, FIFA explicitly recognises the fundamental
importance of clubs’ independence for the purposes of ensuring the integrity of
the competitions, and requires the member associations to ensure that no-one
exercises a control over more than one club that might endanger the integrity of
the competition.
As a way of example, in Italy such provision has been implemented by
the Italian FA (“FIGC”) in Article 16-bis of the internal organizational rules,35
according to which:
____________________
34
Available at: http://resources.fifa.com/mm/document/affederation/generic/02/78/29/07/
fifastatutsweben_neutral.pdf. (February 2018).
35
Available at: www.figc.it/Assets/contentresources_2/ContenutoGenerico/86.$plit/C_2_
ContenutoGenerico_3817_Sezioni_lstSezioni_0_lstCapitoli_1_upfFileUpload_it.pdf (February
2018).
42 Luca Pastore
“1. Shareholdings or management that determine a direct or indirect control

in companies belonging to the professional sphere or to the championship
organized by the Interregional Committee are not admitted.
2. For the purposes referred to in paragraph 1, a subject has a controlling
position of a company or sports association when he – or his relatives or
similar within the fourth degree – is able to control, even indirectly, the
majority of the votes in a decision-making body or to exercise a dominant
influence due to particularly qualified share or to particular contractual
terms”.36
The FIGC has therefore specified defined what a “controlling position”
is, in order to protect clubs’ independence.
However, the first governing body that enshrined the essential role of
clubs’ independence in its regulation was UEFA, following a major case concerning
the English company ENIC Plc.
3.3 A landmark case: the ENIC plc saga
In the landscape of multi-club ownership, the English company ENIC, an investment

company listed on the London Stock Exchange made a landmark case.37
ENIC acquired during the 1990s controlling interests in several European
football clubs by means of subsidiaries: Glasgow Rangers FC, SK Slavia Prague,
AEK Athens FC, Vicenza Calcio, FC Basel and Tottenham Hotspur.38 Its Media
arm was also involved in sports, through the delivery of betting services.
During the 1997/1998 football season, SK Slavia Prague, AEK Athens
and Vicenza Calcio all reached the quarter-final of the UEFA Cup Winners’ Cup:
therefore, three of the eight clubs involved in the quarter-final had ownership-links
among them.
The clubs were not drawn to play against each other39 and only Vicenza
advanced to the semi-final of the competition, where it lost against Chelsea FC.
However, the possibility that clubs with ownership-links could have played
against each other in the quarter-final of a UEFA competition lead UEFA to adopt
a new rule aimed at ensuring the integrity of its competitions.
____________________
36
Original version of Art. 16- bis NOIF: “1. Non sono ammesse partecipazioni o gestioni che
determinino in capo al medesimo soggetto controlli diretti o indiretti in società appartenenti alla
sfera professionistica o al campionato organizzato dal Comitato Interregionale. 2. Ai fini di cui al
comma 1, un soggetto ha una posizione di controllo di una società o associazione sportiva quando
allo stesso, ai suoi parenti o affini entro il quarto grado sono riconducibili, anche indirettamente, la
maggioranza dei voti di organi decisionali ovvero un’influenza dominante in ragione di
partecipazioni particolarmente qualificate o di particolari vincoli contrattuali […]”.
37
See Multi-Club Ownership in European Football – Part I: General Introduction and the ENIC
Saga by Tomáš Grell, available at www.asser.nl/SportsLaw/Blog/post/multi-club-ownership-in-
european-football-part-i-general-introduction-and-the-enic-saga-by-tomas-grell (February 2018).
38
Available at: www.bloomberg.com/research/stocks/private/snapshot.asp?privcapId=875712
(February 2018).
39
AEK Athens lost to the Russian club Lokomotiv Moscow, SK Slavia Prague lost to the German
club VfB Stuttgart, whereas Vicenza Calcio defeated the Dutch club Roda JC.
3.3.1 The UEFA rule “Integrity of the UEFA Club Competitions:

Independence of the Clubs”
After an internal consultation, on 19th May 1998, UEFA finally addressed the
issue of multi-club ownership and enacted a new rule, entitled “Integrity of the
UEFA Club Competitions: Independence of the Clubs” (hereinafter, the “Integrity
Rule”), that prevented clubs under common control to play in the same competition.
According to this rule, an entity (company or individual) cannot control,
either directly or indirectly, more than one club participating in the same UEFA
club competition.40
The Integrity Rule also defined when an individual or legal entity exercises
control over a club, providing a thorough list:
“[…] an individual or legal entity has control of a club where he/she/it: a)
holds a majority of the shareholders’ voting rights, or, b) has the right to
appoint or remove a majority of the members of the administrative,
management or supervisory body, or, c) is a shareholder and alone controls
a majority of the shareholders’ voting rights pursuant to an agreement entered
into with other shareholders of the club in question”.
On 26th May 1998, UEFA communicated the Integrity Rule to its member
associations through Circular Letter no. 37. UEFA also sent a copy to ENIC,
____________________
40
Integrity of the UEFA Club Competitions: Independence of the Clubs: “A. General Principle It
is of fundamental importance that the sporting integrity of the UEFA club competitions be protected.
To achieve this aim, UEFA reserves the right to intervene and to take appropriate action in any
situation in which it transpires that the same individual or legal entity is in a position to influence the
management, administration and/or sporting performance of more than one team participating in
the same UEFA club competition.
B. Criteria:
1) no club participating in a UEFA club competition may, either directly or indirectly:
a) hold or deal in the securities or shares of any other club, or
b) be a member of any other club, or
c) be involved in any capacity whatsoever in the management, administration and/or sporting
performance of any other club, or
d) have any power whatsoever in the management, administration and/or sporting performance
of any other club.
2) no person may at the same time, either directly or indirectly be involved in any capacity
whatsoever in the management, administration and/or sporting performance of more than one club
participating in the same UEFA competition. And
3) In the case of two or more clubs which are under common control, only one may participate in
the same UEFA club competition. In this connection, an individual or legal entity has control of a
club where he/she/it:
a) holds a majority of the shareholders’ voting rights, or
b) has the right to appoint or remove a majority of the members of the administrative, management
or supervisory body, or
c) is a shareholder and alone controls a majority of the shareholders’ voting rights pursuant to an
agreement entered into with other shareholders of the club in question”.
4) The Committee for the UEFA Club Competitions will take a final decision with regard to the
admission of clubs to these competitions. It furthermore reserves the right to act vis-à-vis clubs
which cease to meet the above criteria in the course of an ongoing competition”.
44 Luca Pastore
informing them that the new provision would be effective as of the start of the
new season.
As regards the criteria to be used in order to determine which club should
be admitted to a UEFA club competition in case of two or more club under common
control, UEFA considered the following elements: first, the highest “club coefficient”
(based on the club’s results of the previous five years) and then the highest “national
association coefficient” (based on the previous results of all the teams of a national
association). Lastly lots would be drawn.
As a result of the application of these criteria, on 25th June 1998, UEFA
excluded AEK Athens from the UEFA Cup, while authorising SK Slavia Prague
to compete.
On 15th June 1998, SK Slavia Prague and AEK Athens filed a request
for arbitration with CAS, following the execution of the arbitration agreement
concluded two days before with UEFA.
3.3.2 The proceedings before the Court of Arbitration for Sport
AEK Athens and SK Slavia Prague specifically contested paragraph B.3) of the
Integrity Rule, which was deemed unlawful under a number of aspects. The main
disputed grounds were:
i. violation of the UEFA Statutes: the Integrity Rule created different categories
of members between clubs which are under common control and clubs which
are not and therefore breached the principle of equal treatment;
ii. infringement of EC competition law: violation of Article 81 of the Treaty
Establishing the European Community (hereinafter, the “EC Treaty”),41 because
the Integrity Rule restricted, distorted and prevented competition, limiting
investment within the common market; violation of Article 82 of the EC Treaty,42
because of an abuse by UEFA of its dominant position;
iii. infringement of Swiss competition law: violation of Article 5 and 7 of the
Swiss Federal Act on cartels, because of an agreement between undertakings
significantly affecting competition; and because of an abuse of UEFA of its
dominant position;
iv. infringement of EC law on freedom of movement: violation of the EC Treaty,
because of restrictions on freedom of establishment and on free movement of
capitals;
v. infringement of general principles of law: abuse by UEFA of its regulatory
power with the purpose of preserving its position as the dominant organiser of
European football competitions.
____________________
41
Article 101 TFEU (ex Article 81 EC Treaty): see above, footnote no. 21.
42
Article 102 TFEU (ex Article 82 EC Treaty): see above, footnote no. 22.
At the same time, the claimants also filed a request for interim relief
which was eventually granted on 16th July 1998:43 as a result, AEK Athens and
SK Slavia Prague were allowed to participate in the 1998/99 UEFA Cup.44
On the other side, the respondent requested CAS to dismiss all the
petitions submitted by the claimants, arguing that the Integrity Rule was a balanced
and proportionate way of addressing the common control issue arisen in UEFA
competitions.
On conclusion of the proceedings, on 20th August 1999, CAS issued a
comprehensive award, whereby the Panel found that when commonly controlled
clubs participate in the same competition, the public’s perception is that there is a
conflict of interest potentially affecting the authenticity of results. Therefore, the
Panel concluded that “ownership of multiple clubs competing in the same
competition represents a justified concern for a sports regulator and
organizer”. 45
As regards the principal allegations purported by the claimants (see above),
the Panel observed the following:
i. as to the alleged violation of the UEFA Statutes: the Panel concluded that
the Integrity Rule did not create different categories of member clubs but rather
it established new conditions of participation in UEFA competitions;
ii. as to the alleged infringement of EC competition law: preliminarily the Panel
noted that the European Commission had recently issued a statement whereby
it affirmed that sport is subject to EC competition law only in so far as it
constitutes an economic activity.46 In this case, the Panel noted that the Integrity
Rules concerned not only sporting interests but also economic activities and
____________________
43
In particular CAS based its decision on the circumstance that on a prima facie basis, UEFA
appeared to have violated the duties of good faith and procedural fairness, having enacted the
Integrity Rule after the adoption of the Cup Regulations for the 1998/99 season, which did not
provide any restriction for multiple ownership. Thus, at the time of the Integrity Rule being issued,
ENIC, AEK Athens and SK Slavia Prague could legitimately expect that no restriction was going to
be adopted for the said season (cf. CAS 98/200, AEK Athens and SK Slavia Prague / UEFA, award
of 20 August 1999).
44
Both club failed to progress from the first round: AEK Athens lost to the Dutch club Vitesse, and
SK Slavia Prague lost to the Spanish club Real Sociedad.
45
CAS 98/200, AEK Athens and SK Slavia Prague / UEFA, award of 20 August 1999, para. 48.
46
EC Commission, Press Release no. IP/99/133, 24 February 1999 “Sport comprises two levels of
activity: on the one hand the sporting activity strictly speaking, which fulfils a social, integrating and
cultural role that must be preserved and to which in theory the competition rules of the EC Treaty do
not apply. On the other hand, a series of economic activities generated by the sporting activity, to
which the competition rules of the EC Treaty apply, albeit taking into account the specific requirements
of this sector. The interdependence and indeed the overlap between these two levels render the
application of competition rules more complex. Sport also has features, in particular the
interdependence of competitors and the need to guarantee the uncertainty of results of competitions,
which could justify that sporting organizations implement a specific framework, in particular on the
markets for the production and the sale of sports events. However, these specific features do not
warrant an automatic exemption from the EU competition rules of any economic activities genera
ted by sport, due in particular to the increasing economic weight of such activities”.
46 Luca Pastore
therefore it decided to proceed with the analysis of the alleged violation of

Articles 81 and 82 of the EC Treaty.
a) Article 81 prohibits “all agreements between undertakings, decisions
by associations of undertakings and concerted practices which […]
have as their object or effect the prevention, restriction or distortion
of competition within the internal market’’.
On this point, the Panel found that the Integrity Rule undoubtedly
discouraged owners of football clubs capable of qualifying for UEFA
competitions from buying ownership interests in different football clubs
with the same capability; however, such effect is pro-competitive given
that it enables more undertakings to enter the relevant market, and hence
it fosters new investments in professional football.
Finally, the Panel concluded that the Integrity Rule “… is not more
extensive than necessary to serve the fundamental goal of preventing
conflicts of interest which would be publicly perceived as affecting
the authenticity, and thus the uncertainty, of results in UEFA
competitions. The Panel finds the [Integrity] Rule to be proportionate
to such legitimate objective and finds that no viable and realistic less
restrictive alternatives exist”.47 Article 81 of the EC Treaty had therefore
not been violated.
b) The claimants sustained that the adoption of the Integrity Rule constituted
an abuse of UEFA’s dominant position, contrary to Article 82 of the EC
Treaty.
In order to find an abuse of dominant position, the Panel deemed it
necessary to find that UEFA was seeking to overcome rival competitors
through its dominant market power. However, UEFA was not going to
enter into the market for ownership interests in football clubs and, according
to the findings of the Panel, it acted only as a mere regulator.
As a result, the Panel decided that the Integrity Rule did not violate Article
82 of the EC Treaty.
iii. as to the alleged infringement of Swiss competition law: the Claimants
contested the violation of Article 548 and 749 of the Swiss Federal Act on Cartels
____________________
47
CAS 98/200, ibidem, para. 136.
48
Article 5.1 of the Loi fédérale sur les cartels et autres restrictions à la concurrence reads: “Les
accords qui affectent de manière notable la concurrence sur le marché de certains biens ou services
et qui ne sont pas justifiés par des motifs d’efficacité économique, ainsi que tous ceux qui conduisent
à la suppression d’une concurrence efficace, sont illicites» (“All agreements which significantly
affect competition in the market for certain goods or services and are not justified on grounds of
economic efficiency and all agreements that lead to the suppression of effective competition are
unlawful”).
49
Article 7.1 of the Loi fédérale sur les cartels et autres restrictions à la concurrence reads “Les
pratiques d’entreprises ayant une position dominante sont réputées illicites lorsque celles-ci abusent
de leur position et entravent ainsi l’accès d’autres entreprises à la concurrence ou son exercice, ou
désavantagent les partenaires commerciaux» (“Practices of undertakings having a dominant position
(“Loi fédérale sur les cartels et autres restrictions à la concurrence» of 6

October 1995), which essentially correspond to Article 81 and 81 of the EC
Treaty respectively. Therefore, the conclusions reached under the previous
point applied – mutatis mutandis – to Articles 5 and 7 of the Swiss Cartel Act.
iv. as to the alleged infringement of EC law on freedom of movement: on this
point, the Panel decided that even assuming that the Integrity Rule somewhat
restricts the right of establishment or the free movement of capital, the need
for preserving the authenticity and uncertainty of sporting results constitutes a
justified ground for such restriction, as explicitly admitted in the Bosman case.50
v. as to the alleged infringement of general principles of law: the Panel
observed that as already explained above, UEFA did not seek to overcome
rival competitors through its dominant market power, having acted only as a
mere regulator.
However, despite having ascertained the general admissibility of the
Integrity Rule, the Panel found that UEFA violated its duty of procedural fairness
because it adopted such rule too late. Therefore, the violation of the unwritten
principle of procedural fairness led the Panel to decide that the Integrity Rule
could have been implemented by UEFA starting from the 2000/2001 football season.
3.3.3 The proceedings before the European Commission
On 18th February 2000, ENIC lodged a complaint with the European Commission
ex art. 3, n. 2 of the Regulations 17/6251 claiming again that the Integrity Rule
adopted by UEFA infringed Articles 81 and 82 the EC Treaty.
According to ENIC, the Integrity Rule could not be qualified as a sporting
rule and it restricted investment in European football clubs’ stocks, producing
restrictions and distortions of competition in both the market for the supply of
capital to football clubs and its ancillary markets, such as the market for players,
the sponsorship market, the football merchandising market, and the media rights
market.
____________________
are deemed unlawful when such undertakings, through the abuse of their position, prevent other
undertakings from entering or competing in the market or when they injure trading partners”).
50
EC Court of Justice, Judgement of 15 December 1995, case C-415/93, in E.C.R. 1995, I-4921,
para. 106 “in view of the considerable social importance of sporting activities and in particular
football in the Community, the aims of maintaining a balance between clubs by preserving a certain
degree of equality and uncertainty as to results ... must be accepted as legitimate”.
51
Regulation No 17 First Regulation implementing Articles 85 and 86 of the Treaty: Article 3
“Termination of infringements: 1. Where the Commission, upon application or upon its own initiative,
finds that there is infringement of Article 85 or Article 86 of the Treaty, it may by decision require the
undertakings or associations of undertakings concerned to bring such infringement to an end. 2.
Those entitled to make application are: (a) Member States; (b) natural or legal persons who claim
a legitimate interest. 3. Without prejudice to the other provisions of this Regulation, the Commission
may, before taking a decision under paragraph 1, address to the undertakings or associations of
undertakings concerned recommendations for termination of the infringement”. [Regulation (EEC)
No 17/62 was replaced by Regulation (EC) No 1/2003 as of 1 January 2004].
48 Luca Pastore
In the decision,52 the Commission found out that the object of the contested
rule was not to distort competition but to protect the integrity of the competition
and to avoid conflicts of interest. Such rule was therefore motivated by the need
to protect integrity of sporting UEFA competitions.53
With regard to the effect of the Integrity Rule, the Commission held that
“the limitation on the freedom to act therefore merely constitutes the effect of
the application of a rule which is deemed necessary and proportionate to the
need to maintain the public’s confidence in the fairness and authenticity of
the game, the absence of which would have the effect of rendering, in the
long term, any competition impossible”.54
Therefore, the Commission declared that the Integrity Rule fell outside
Article 81 of the EC Treaty, provided it is applied in an objective and non-
discriminatory manner.
Finally, the Commission turned to the analysis of Article 82 of the EC
Treaty and rejected ENIC’s complaint on the basis that “If one were to assume
that UEFA enjoys a dominant position in whatever market, the fact that UEFA
has adopted such a rule does not appear to constitute in itself an abuse of
dominant position”. 55
3.3.4 Conclusion: the ENIC legacy
The events that lead to the ENIC saga put in the spotlight for the first time the
presence of a multi-club ownership practice that jeopardised the integrity of
European football competitions and led UEFA to start regulating the matter in
order to protect the credibility of such competitions.
The Integrity Rule enacted by UEFA introduced some restrictions aimed
at preventing owners of European clubs from acquiring controlling interests in
other clubs participating in the same competition.
Such rule stood up to the scrutiny of CAS first – which considered the
restrictions proportionate to the legitimate purpose of preserving the integrity of
the competitions – and of the European Commission later – which confirmed the
Integrity Rule’s compliance with EU competition law.
The outcomes of both proceedings firmly confirmed that the protection
of integrity plays an essential part in the competitions, which justifies the limitations
imposed by UEFA.
____________________
52
Available at: http://ec.europa.eu/competition/antitrust/cases/dec_docs/37806/37806_7_3.pdf
(February 2018).
53
European Commission decision case COMP/37 806: ENIC/ UEFA, para. 28.
54
55
3.4 The Red Bull case and the concept of “decisive influence”
As we explained above, UEFA enacted the Integrity Rule in order to protect

football from corporate structures that could have affected the integrity and credibility
of the competitions.
However, the development of new forms of cooperation and influence
among clubs and third parties led UEFA to make the Integrity Rule more stringent,
since it realised that even if a club, an individual or a legal entity does not have de
jure control over a club, it may still be able to exercise de facto control over such
club.
In order to also prevent indirect forms of control, UEFA introduced the
concept of “decisive influence”, which has been analysed by a recent decision
issued by the UEFA Club Financial Control Body (“CFCB”) in a major case involving
the Austrian company Red Bull GmbH.56
3.4.1 Red Bull’s entry into football
Founded in the mid 1980’s by Mr Dietrich Mateschitz, Red Bull GmbH (hereinafter,
“Red Bull”) has its core business in the production and commercialisation of its
namesake famous energy drink.
Red Bull has also been an innovator in marketing: instead of following
traditional approaches to mass marketing, it has associated its brand with a range
of sporting events and teams. Since the beginning, Red Bull has been focusing on
organising or sponsoring extreme sport events whereas more recently it has
extended its presence into the purchase and re-branding of a number of sports
teams, including football clubs.
In particular, the presence of Red Bull in football dates back to 2005,
when it bought the Austrian club SV Austria Salzburg and renamed it to FC Red
Bull Salzburg.
Afterwards, Red Bull bought the New York MetroStars and renamed
the franchise Red Bull New York; in 2007, it established in São Paulo the lower-
division Red Bull Brasil team and in 2008 founded a professional football team and
academy located in Ghana, which was eventually abolished in 2014.
Finally, in 2009, Red Bull founded the RasenBallsport Leipzig e.V. and
acquired the playing rights of SSV Markranstädt, a German fifth division club
based near Leipzig. Under Red Bull’s ownership, the club got repeatedly promoted
and in seven seasons it reached the top of the German football league system, the
Bundesliga.
____________________
56
See Multi-Club Ownership in European Football – Part II: The Concept of Decisive Influence in
the Red Bull Case, by Tomáš Grell, available at www.asser.nl/SportsLaw/Blog/post/multi-club-
ownership-in-european-football-part-ii-the-concept-of-decisive-influence-in-the-red-bull-case-by-
tomas-grell (February 2018).
50 Luca Pastore
Red Bull’s takeovers of football clubs implicated not only a change of

ownership, but a complete revolution of the clubs’ identity.
In fact, after the takeover of SV Austria Salzburg, Red Bull changed the
club’s name, management and staff; it also changed the club’s colours and logo,
according to Red Bull’s commercial brand.
What is more, Red Bull also claimed on the club’s website that the club
was founded in 2005 (whereas the original club was formed in 1933), but the
Austrian Football Association ordered them to remove it.
The same process happened with the New York MetroStars, although in
this case Red Bull decided to recognise the club history.
As regard to the German club RasenBallsport Leipzig e.V., the logo and
colours chosen by Red Bull for the club emphasised the connection with the
corporate identity. However, the statutes of the German Football Association did
not permit the corporate name to be included in the club’s name: this is why the
club adopted the unusual name “RasenBallsport” – which literally means “Lawn
Ball Sports” – in order to keep in the name the initials “RB”, which corresponds
to the initials of the company.
As a result of this marketing strategy, the connection among the clubs
and Red Bull could not be more blatant and manifest: all the football clubs in Red
Bull’s portfolio have similar outfits to fit the colours of Red Bull’s branding: white
and red at home while a combination of navy blue and yellow for away kits, each
with a prominent Red Bull logo across the chest.
Moreover, each team plays in a stadium named “Red Bull Arena” and,
what is more, the clubs’ logos explicitly display the company’s brand (two red
bulls charging against each other in front of a yellowish gold circle) and name
(apart from the German club, for the reasons explained above).
Therefore, it appears clear that by means of these takeovers, Red Bull
not only decided to invest in football, but it chose to exploit its ownerships of
football clubs for advertising purposes, manifestly promoting its brand.
This new model arose strong criticism in the football industry and in
particular among football fans. On several occasions, opponents’ fans protested
against the business model promoted by Red Bull, perceived as a threat to football,57
but also Red Bull clubs’ fans protested against the loss of identity of the clubs they
supported.58 However, fans were not the only ones to be worried about the Red
Bull clubs’ rise.
Since Red Bull’s takeover of RB Leipzig in 2009, it appeared clear that
the common ownership was not only aimed at promoting Red Bull brand through
an innovating marketing strategy: in fact, RB Leipzig and FC Red Bull Salzburg
____________________
57
E.g. see www.dailymail.co.uk/sport/football/article-3753194/Holy-cow-Dynamo-Dresden-fans-
red-throw-severed-bull-s-head-RB-Leipzig-clash.html, www.bbc.co.uk/sport/football/37467692,
and www.theguardian.com/football/2016/sep/08/why-rb-leipzig-has-become-the-most-hated-club-
in-german-football (February 2018).
58
E.g. see www.violett-weiss.at/index.en.php (February 2018), https://in.reuters.com/article/id
INIndia-57287120110526 (February 2018).
had a close cooperation involving an increased transfer activity, which has seen
players moving from one club to the other on a regular basis. Just during the
2015/2016 and 2016/2017 summer transfer windows, eight of the best FC Red
Bull Salzburg’s players departed for the German club RB Leipzig.59 These transfers
provoked anger among the fans of FC Red Bull Salzburg and put the focus back
on the practices related with multi-club ownership, arising a number of questions
in relation to the legitimacy of such practice.
Eventually, RB Leipzig reached the second position of the 2016/17
Bundesliga season behind FC Bayern Munich, and qualified for the 2017/18 UEFA
Champions League group stage.
In May 2017, FC Red Bull Salzburg also qualified for 2017/18 UEFA
Champions League, by winning the Austrian top division championship.
Both clubs were consequently granted the UEFA licences for the
2017/18 season by their respective football associations .60
However, on 16th May 2017, the Chief Investigator of the UEFA Club
Financial Control Body informed the clubs that an investigation had been opened
in accordance with the Procedural rules governing the CFCB in order to assess
whether both clubs were able to participate in the 2017/18 UEFA Champions
League according to the “Regulations of the UEFA Champions League
2015-18 Cycle” (hereinafter, the “UCLR”).61
3.4.2 Article 5 of the Regulations of the UEFA Champions League

2015-18 Cycle
The principles provided by the Integrity Rule enacted by UEFA Executive

Committee in 1998 have been inserted in the UCLR, under article 5 (hereinafter,
the “Current Integrity Rule”) .62
____________________
59
See www.espn.co.uk/football/fc-salzburg/story/2945474/salzburg-fans-hit-out-at-club-owner-
red-bull-over-sales-of-big-name-players (February 2018).
60
A similar situation happens nowadays, with both clubs qualified for the 2017–18 UEFA Europa
League knockout phase.
61
Available at: www.uefa.com/MultimediaFiles/Download/Regulations/uefaorg/Regulations/02/46/
71/38/2467138_DOWNLOAD.pdf (February 2018).
62
Article 5 of the Regulations of the UEFA Champions League 2015-18 Cycle: “To ensure the
integrity of the UEFA club competitions, the following criteria apply:
a. no club participating in a UEFA club competition may, either directly or indirectly:
i. hold or deal in the securities or shares of any other club participating in a UEFA club competition;
ii. be a member of any other club participating in a UEFA club competition;
iii. be involved in any capacity whatsoever in the management, administration and/or sporting
performance of any other club participating in a UEFA club competition; or
iv. have any power whatsoever in the management, administration and/or sporting performance of
any other club participating in a UEFA club competition.
b. no one may simultaneously be involved, either directly or indirectly, in any capacity whatsoever
in the management, administration and/or sporting performance of more than one club participating
in a UEFA club competition;
52 Luca Pastore
In fact, also the Current Integrity Rule makes admission to UEFA

competitions conditional upon the fulfilment of specific criteria, aimed at ensuring
integrity in the competitions.
However, the Current Integrity Rule differs from the Integrity Rule in
three major aspects:
I) the Integrity Rule considered relevant the ownership-link among clubs
participating in the same UEFA club competition, whereas the Current Integrity
Rule extends this prohibition to clubs participating both in the UEFA Champions
League and the UEFA Europa League;
II) in order to evaluate whether an individual or legal entity is supposed to have
control over a club, in addition to the criteria established by the Integrity Rule,
the Current Integrity Rule foresees the case whereby an individual or legal
entity is able to exercise by any means a ‘decisive influence’ in the decision-
making of the club;
III) the Current Integrity Rule encapsulates the criteria that determine which
club should be admitted to a UEFA club competition in case one or more
clubs do not meet the conditions provided to ensure integrity in the competitions,
and among them, the “club coefficient” no longer represents the principal
criterion: clubs that qualify on sporting merit for the more prestigious UEFA
club competition shall be preferred.
3.4.3 The proceedings before the Adjudicatory Chamber of the UEFA Club
Financial Control Body
After both FC Red Bull Salzburg and RB Leipzig qualified in the 2017/18 UEFA
Champions League, the Investigatory Chamber of the CFCB conducted an
investigation in order to evaluate whether the clubs fulfilled the criteria enshrined
in the Current Integrity Rule. As a result, on 24th May 2017, it decided to refer the
____________________
c. no individual or legal entity may have control or influence over more than one club participating
in a UEFA club competition, such control or influence being defined in this context as:
i. holding a majority of the shareholders’ voting rights;
ii. having the right to appoint or remove a majority of the members of the administrative, management
or supervisory body of the club;
iii. being a shareholder and alone controlling a majority of the shareholders’ voting rights pursuant
to an agreement entered into with other shareholders of the club; or
iv. being able to exercise by any means a decisive influence in the decision making of the club.
If two or more clubs fail to meet the criteria aimed at ensuring the integrity of the competition, only
one of them may be admitted to a UEFA club competition, in accordance with the following criteria
(applicable in descending order):
a. the club which qualifies on sporting merit for the more prestigious UEFA club competition (i.e., in
descending order: UEFA Champions League and UEFA Europa League);
b. the club which was best-ranked in the domestic championship giving access to the relevant UEFA
club competition;
c. the club whose association has the highest association coefficient ranking, drawn up in accordance
with Annex D.
Clubs that are not admitted are replaced in accordance with Paragraph 4.08”.
case to the CFCB Adjudicatory Chamber in accordance with Article 14, para. 1,
lit. d) of the “Procedural rules governing the UEFA Club Financial Control
Body”. 63
In particular, the CFCB Chief Investigator alleged that Red Bull had a
“decisive influence” over FC Red Bull Salzburg and RB Leipzig, in contravention
of para. 1, lit. c, no. iv of the Current Integrity Rule. Such conclusion was reached
on the basis of the following circumstances:
1. Red Bull had the ability to control access to the ordinary membership of the
General Assembly of both clubs;
2. both clubs concluded sponsorship agreements and loan financing with Red Bull
on unusually favourable economic terms;
3. FC Red Bull Salzburg rented its stadium and offices from a subsidiary of Red
Bull;
4. as regards the relationship between the two clubs, the CFCB Chief Investigator
considered different aspects, such as the cooperation in place between the
clubs, the involvement of certain individuals connected to Red Bull in the
operation of both clubs, and the common visual identity/similar branding of the
clubs.
In light of these findings, the CFCB Chief Investigator concluded that
FC Red Bull Salzburg and RB Leipzig did not satisfy the criteria provided by the
Current Integrity Rule: hence, in compliance with article 5 para. 2, lit. b of the
Current Integrity Rule, only FC Red Bull Salzburg should have been admitted to
the competition.
However, having analysed the arguments purported by the CFCB Chief
Investigator and the stances and evidence submitted by the defendants, on 16th
June 2017, the CFCB Adjudicatory Chamber issued a different decision,64 stating
that the Current Integrity Rule had not been breached in the case at stake.
3.4.4 “Decisive interest” in the decision rendered by the Adjudicatory

Chamber of the UEFA Club Financial Control Body
The CFCB Adjudicatory Chamber focused the analysis to assess the Red Bull
capacity to exercise decisive influence in the decision making of both clubs, or for
____________________
63
Article 14, para. 1 of the Procedural rules governing the UEFA Club Financial Control Body
reads: “At the end of the investigation, the CFCB chief investigator, after having consulted with the
other members of the investigatory chamber, may decide to: a) dismiss the case; or b) conclude,
with the consent of the defendant, a settlement agreement; or c) apply, with the consent of the
defendant, disciplinary measures limited to a warning, a reprimand or a fine up to a maximum
amount of EUR100,000; or d) refer the case to the adjudicatory chamber”. The document is
available here: www.uefa.com/MultimediaFiles/Download/Tech/uefaorg/General/02/28/72/46/
2287246_DOWNLOAD.pdf (February 2018).
64
UEFA Club Financial Control Body, decision in case AC-01/2017. The document is available at
www.uefa.com/MultimediaFiles/Download/OfficialDocument/uefaorg/ClubFinancialControl/02/48/
50/34/2485034_DOWNLOAD.pdf (February 2018).
54 Luca Pastore
one of the clubs to have the ability to exercise decisive influence in the relevant
decision making of both clubs.
Lacking a definition of “decisive influence” in the relevant regulations,
the CFCB Adjudicatory Chamber deemed it appropriate to limit the nature of the
decision making under scrutiny to decisions that might impact on the integrity of a
competition: as a result, it considered only decisions related to matters that affect
the performance of a club in a competition, keeping out of scrutiny every other
generic decision related to corporate, commercial or financial activities.
The CFCB Adjudicatory Chamber then clarified the evaluation criterion
of the analysis: starting from the wording of article 5, para. 1, lit. c, no. I, II and III,
the CFCB Adjudicatory Chamber noted that “nothing short of a legal power to
control decision making is required under these provisions”. 65 Therefore,
applying the same yardstick to the last provision of article 5, para. 1, lit. c, it
concluded that “the benchmark for establishing decisive influence is a high
one, requiring the ability to direct the decision making of both Clubs by any
means”.66
Furthermore, it underlined that the subject of the analysis was the situation
existing at the date when all of the evidence and facts in the case had been
submitted, given that the issue was whether the clubs comply with the relevant
regulations as at the date of admission to the UEFA Champions League.
Lastly, it specified that the CFCB Investigatory Chamber bore the burden
to prove that Red Bull had decisive influence over both Clubs, and the standard of
proof was to be to the Chamber’s “comfortable satisfaction”.
Finally, the CFCB Adjudicatory Chamber examined the arguments of
the CFCB Chief Investigator within the above-mentioned framework, in order to
determine whether Red Bull was able to exercise “decisive influence” in the
decision-making of both clubs.
Starting from the analysis of the relationship between Red Bull and FC
Red Bull Salzburg, the Chamber analysed the evidence submitted by the defendants
and noted that the club had removed certain individuals allegedly linked to Red
Bull from the club’s decision-making bodies and terminated certain loan agreements
that were under scrutiny.
In addition, during the proceedings, FC Red Bull Salzburg provided
documentary evidence to prove that it had made additional changes to address
some of the issues raised by the CFCB Investigatory Chamber: in particular, the
cooperation agreement concluded with RB Leipzig had been terminated, the
sponsorship agreement had been amended (both the rights granted to Red Bull
and the amounts paid by Red Bull), and Red Bull’s membership in the General
Assembly of the club had been terminated.
Also, FC Red Bull Salzburg explicitly committed to address the situation
regarding the stadium and the branding and visual identity of the club.
____________________
65
UEFA Club Financial Control Body, decision in case AC-01/2017, para. 38.
66
In light of these new circumstances and considering the basis and extent
of the analysis at stake (as defined above), the Chamber concluded that Red Bull
did not have decisive influence over the relevant decision-making bodies of FC
Red Bull Salzburg, holding that at the time of its decision, Red Bull’s relationship
with RB Salzburg “resembles only a standard sponsorship relationship”.67
Consequently, the CFCB Adjudicatory Chamber deemed that there was
no need to consider the relationship between RB Leipzig and Red Bull.
Finally, the CFCB Adjudicatory Chamber considered whether one of the
clubs exercised “decisive influence” over the other. Despite the cooperation
agreement and the significant transfer activity between the clubs, the Chamber
eventually stated that there was insufficient evidence to corroborate such a thesis.
As a result, the CFCB Adjudicatory Chamber admitted both clubs to the
2017/18 edition of the UEFA Champions League.
3.4.5 Conclusion: the concept of “decisive influence”
By inserting the broad concept of “decisive influence” in the current regulations,

UEFA has integrated the applicable regulatory framework with a rule aimed at
protecting the integrity of the competitions from new and unpredictable forms of
multi-club ownership. As a matter of fact, the presence of such a wide and
undetermined concept in the regulations might allow UEFA to adopt in the future
an extensive interpretation of the “influence” relevant to the rule, in order to
strengthen the effectiveness of the provision.
In the Red Bull case, the CFCB Adjudicatory Chamber analysed the
notion of “decisive influence” but it did not provide any element useful for specifying
the extent of the concept.
External observers 68 have put forward that the Chamber had the
opportunity to identify the boundaries of the relevant “influence” by defining such
notion or, at least, by providing more details about the case at stake in order to
identify specific elements that qualifies influence as “decisive”. In particular, the
Chamber could have explained why the amendments made by FC Red Bull Salzburg
had been considered appropriate to guarantee that no “decisive influence” was
exercised by Red Bull. They could have clarified the roles of the individuals removed
from the club’s decision-making bodies because of their links with Red Bull, or
why the amendments made to the sponsorship deal satisfied the Chamber.
On the contrary, the Chamber did not clarify the extent of such concept,
or provide concrete criteria that might have been useful for the stakeholders in
order to regulate their conduct. The only new element provided by the decision of
____________________
67
68
See Multi-Club Ownership in European Football – Part II: The Concept of Decisive Influence in
the Red Bull Case, by Tomáš Grell, available at www.asser.nl/SportsLaw/Blog/post/multi-club-
ownership-in-european-football-part-ii-the-concept-of-decisive-influence-in-the-red-bull-case-by-
tomas-grell (February 2018).
56 Luca Pastore
the CFCB Adjudicatory Chamber in the present case is that “the benchmark for
establishing decisive influence is a high one, requiring the ability to direct
the decision making of both Clubs by any means”.69
Such approach of the CFCB Adjudicatory Chamber may have been
dictated by the intention of preserving the wide extent of the provision, in a case
whereby a clear stance on the extent of “decisive influence” was not required,
because of the amendments made by Red Bull after the notification of the alleged
violations of the Current Integrity Rule.
However, it is desirable that UEFA refine the concept of “decisive
influence” in order to permit the UEFA members to regulate their conduct with
certainty and to protect those subjects from an arbitrary application of the relevant
regulations. For the time being, the scope of article 5, para. 1, lit. c, no. iv of the
Regulations of the UEFA Champions League 2015-18 Cycle appears too broad
and vague to correctly and effectively interpret it and to guarantee the minimum
legal certainty recognised as an essential requirement for the rule of law.
3.5 MCO: conclusions
Clubs’ owners are developing global networks of clubs that could transform not
only the structure of football clubs, but also football as we know it today.
So far, MCO models have been used to nurture young talent (like in the
case of the Pozzo family) or to create a new way to increase the competitiveness
of the club, optimising financial resources and improving existing structures (like
the City Group) or as a branding exercise to advertise companies (like Red Bull).
New clubs will probably follow these MCO models and it is very likely
that new MCO models will soon develop in the football landscape. Some clubs are
already planning new alternative strategies: the Spanish club FC Barcelona, for
instance, have confirmed the intention to create a women’s football franchise to
join USA’s National Women’s Soccer League.70
What is certain is that the number of clubs adopting MCO models is
going to increase on a drastic scale over the next few years to grow their brands,
diversify their business and optimize their operations, in parallel with the increasing
internationalisation and commercialisation of football.
The rise of MCO is steered also by the increasing transfer fees, which
lead football clubs to seek alternative models to scout and develop their own talents,
and by the corporations’ investment that will rise, following Red Bull’s successful
model.
The growth of MCO brings the raise of controversial issues that regulatory
bodies and sporting courts are going to face.
____________________
69
70
Available at: www.usatoday.com/story/sports/soccer/2017/05/12/barcelona-to-have-womens-
team-in-united-states/101586820/ (February 2018).
The current regulatory framework lies on a confederation/association

level, as a result of the mandate given by FIFA to the single associations to ensure
the integrity of the competitions by exercising a strict control over clubs’ ownership
(cf. Article 20, para. 2 of the FIFA Statutes).
However, in my view this regulatory structure determines a bare and
fragmented legal framework, which is not appropriate anymore in light of the
increasing number of clubs involved in MCO with an always more complex and
transnational structure. The City Group, for example, owns clubs in England
(Manchester City), USA (New York City), Australia (Melbourne City), Japan
(Yokohama Marinos) and Uruguay (Club Atlético Torque): the issue has a global
dimension and it should be regulated at a global level.
It is therefore time now for FIFA to provide a clear and dedicated
regulatory framework for MCO, in order to regulate these business models
consistently all over the world. If this should not be the case, it will be up to the
sporting deciding bodies to face the new challenges brought by MCO and to tackle
always more complex issues in order to protect the integrity of football, because
one thing is for sure: MCO will definitely come under the spotlight again in the
near future.
4. Final comments
Third party ownership and multi-club ownership have always been controversial
topics among the football stakeholders.
Undoubtedly both practices can lead to abuses that might jeopardise the
integrity of the competitions. However, this risk has been handled in different
ways in relation to TPO and MCO.
In 2014, FIFA decided to ban TPO, thereby depriving clubs of an important
financial source, especially in case of clubs playing in less lucrative leagues. Such
outright ban imposed by FIFA represents in my opinion an unnecessary shutdown,
which has had a severe and serious impact on a large number of clubs that adopted
this practice to mitigate risks – sharing the financial burden of signing players –, or
to ‘release equity’ from existing players, or to maintain a competitive balance.
In my view, FIFA had to hold a more reasonable approach, implementing
a regulatory framework aimed at promoting transparency, by tackling conflicts of
interest and material influence over clubs and by adopting a full disclosure-policy,
maybe through the TMS system already in place.
In addition, FIFA could have limited third-party economic rights
establishing a maximum admissible percentage, or limiting the number of players
from the same club in which a third-party can have minority economic rights.
A well-reasoned regulation could have achieved the target of protecting
the integrity of the competitions without depriving clubs of such an important financial
instrument as TPO.
58 Luca Pastore
On the contrary, the approach adopted by UEFA about MCO has been,
in my view, focused on the substance and balanced.
In fact, UEFA only prohibits the control of multiple clubs, but not the
acquisition of minority stakes in them. What is more, by inserting the concept of
“decisive influence” in the current regulations, UEFA has on one side integrated
the applicable regulatory framework with a broad concept that does not help legal
certainty, but on the other side it inserted a concept aimed at protecting the integrity
of the competitions from new and unpredictable forms of multi-club ownership,
leaving the door open for further development of this practice.
On a general note, I think that the football governing bodies cannot analyse
and regulate these practices without considering the bigger picture in which these
have been developing.
Football has changed dramatically over the last ten to twenty years and
so have football clubs, which are turning from sporting entities with strong roots in
the local socio-economic context, to global lucrative companies, aimed at exploiting
their brand worldwide in order to maximise their profits.
Nowadays, the difference between big clubs and the rest is dramatically
increasing and we are now facing a two-tier system: on one tier, there are the big
clubs, able to exploit their brands on a global scale, which see their revenues
increase like never before; on the other tier, there is the rest of the clubs, which
struggle to maintain financial sustainability in the hope of gathering a few crumbs
from the top clubs’ table.
The current trend will likely lead to a closed system, which attracts the
biggest stars in order to create more potential for investments, replicating the
model implemented in the United States. Ironically, the football governing bodies
see the closed system as an anathema, but seem to be doing everything possible to
ensure its adoption.
Without a strong governance bent on implementing effective financial
regulations aimed at reducing inequality among clubs by means of rules for sharing
revenues and limiting player wages, the growing commercialisation of the big clubs
will lead to an even more drastic radicalisation of this gap, with few clubs competing
for the trophies and the rest in the background, which cannot even aspire to compete
with top clubs. However, this is not football’s tradition.
Commercialisation of football should not be about bad and cynical people
stealing the game from fans, but an opportunity for the stakeholders to increase
the competitiveness of the game in order to make the football grow as a whole,
protecting the values and the romantic appeal that led football to be the most
beloved of popular sports.
Every political or regulatory debate about football clubs’ financing cannot
avoid a preliminary reflection about where football is heading for.

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RIVISTA DI ISSN 1825-6678

DIRITTO ED ECONOMIA DELLO SPORT Vol. XIV, Fasc. 1, 2018

THIRD PARTY OWNERSHIP AND MULTI-CLUB OWNERSHIP:

Keywords: Third party ownership – Multi-club ownership – Clubs financing – Integrity

SUMMARY: 1. Introduction – 2. Third-party ownership – 2.1 Third-party ownership of players:

According to UEFA’s Club Licensing Benchmarking Report 4

2. Third party ownership

The expression “third-party ownership” (“TPO”) indicates the practice whereby

This model represented a club/club co-ownership scenario, and it had

2.1 Third-party ownership of players: financial instruments or threats?

2.2 The FIFA ban on third party ownership

concluding agreements whereby a third party is entitled to receive financial benefits

2.3 Challenges to the FIFA TPO ban

2.4 TPO: conclusion

In times of advanced internationalisation and commercialisation of sports, football

3.1 The evolution of MCO

The City Football Group is a holding company under the ownership of

3.2 The current regulatory framework

“1. Shareholdings or management that determine a direct or indirect control

3.3 A landmark case: the ENIC plc saga

In the landscape of multi-club ownership, the English company ENIC, an investment

3.3.1 The UEFA rule “Integrity of the UEFA Club Competitions:

3.3.2 The proceedings before the Court of Arbitration for Sport

therefore it decided to proceed with the analysis of the alleged violation of

(“Loi fédérale sur les cartels et autres restrictions à la concurrence» of 6

3.3.3 The proceedings before the European Commission

3.3.4 Conclusion: the ENIC legacy

As we explained above, UEFA enacted the Integrity Rule in order to protect

3.4.1 Red Bull’s entry into football

Red Bull’s takeovers of football clubs implicated not only a change of

3.4.2 Article 5 of the Regulations of the UEFA Champions League

The principles provided by the Integrity Rule enacted by UEFA Executive

In fact, also the Current Integrity Rule makes admission to UEFA

3.4.4 “Decisive interest” in the decision rendered by the Adjudicatory

3.4.5 Conclusion: the concept of “decisive influence”

By inserting the broad concept of “decisive influence” in the current regulations,

3.5 MCO: conclusions

The current regulatory framework lies on a confederation/association

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