Analysis of the third-party ownership (TPO) prohibition under FIFA RSTP Articles 18bis and 18ter: RFC Seraing case, Doyen Sports, CAS jurisprudence, Swiss Federal Tribunal review and the pending CJEU process.
The prohibitions on Third-Party Ownership (TPO) and Third-Party Influence (TPI) in football constitute one of the most controversial and impactful regulatory frameworks established by FIFA in the realm of sports law. The TPO prohibition introduced through Article 18ter of the FIFA Regulations on the Status and Transfer of Players (RSTP), which entered into force on 1 May 2015, aims at a global scale to prevent financial actors from interfering with the economic rights of players in the transfer market. This article examines in detail the normative framework of the TPO prohibition, the jurisprudence of the Court of Arbitration for Sport (CAS), the review carried out by the Swiss Federal Tribunal (Tribunal fédéral / Bundesgericht), and the ongoing proceedings before the Court of Justice of the European Union (CJEU).
1. The Concept of TPO and Its Historical Development: From South America to Europe
Third-party ownership refers to the holding of a portion of a football player's economic rights by a natural or legal person other than the club (an investment fund, agency firm, or individual investor). This mechanism became widespread in the South American football market — particularly in Brazil, Argentina, and Uruguay — during the 1990s and 2000s, serving the function of providing short-term liquidity to financially strained clubs. The economic-rights structure that emerged during the 2006-2007 transfers of Carlos Tevez and Javier Mascherano to West Ham United brought TPO to widespread European public attention. The English Premier League prohibited TPO under its own rules in 2008, and Poland and France introduced similar restrictions. FIFA, having initiated the restrictive process in 2007 with Article 18bis, transformed it into an absolute prohibition in 2015 through Article 18ter.
2. FIFA RSTP Article 18bis: Prohibition of Third-Party Influence (TPI)
Article 18bis of the FIFA RSTP provides that "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". This regulation targets the influence capacity of a third party and applies independently of the financial rights ownership structure. In FC Twente v. FIFA (CAS 2016/A/4490), the CAS held that the agreement between the Dutch club FC Twente and Doyen Sports constituted a breach of Article 18bis, emphasising that contractual rights granting a third party the power to veto transfers or trigger mandatory sales fall squarely within the scope of the prohibition.
3. FIFA RSTP Article 18ter: The Absolute TPO Prohibition and Its Exceptions
Article 18ter, which entered into force on 1 May 2015, absolutely prohibits third parties from owning the economic rights of players. The provision 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 provision contains three principal exceptions: (i) the former club's right to claim training compensation or solidarity contribution, (ii) advances paid by the club to the player prior to a transfer, and (iii) inter-club payments between parties to standard transfer agreements. Under transitional provisions, contracts valid prior to 1 May 2015 could remain in force for the duration of their remaining terms.
4. The RFC Seraing Case: The Most Comprehensive TPO Test Before European Law
The disciplinary process initiated due to the TPO agreement between the Belgian second-division club Royal Football Club Seraing and the investment fund Doyen Sports has constituted the most comprehensive test of the TPO prohibition before European law. The FIFA Disciplinary Committee sanctioned the club in 2015, and the decision was brought before CAS. In CAS 2016/A/4490 RFC Seraing v. FIFA, CAS held that FIFA's TPO prohibition was proportionate, legitimate, and consistent with international public policy. The decision responds to three fundamental legal arguments:
(i) From the standpoint of EU Law — claims regarding Article 56 TFEU (freedom to provide services), Article 63 TFEU (free movement of capital), and competition rules (Articles 101/102 TFEU) were rejected; (ii) With regard to Article 1 of Protocol 1 of the European Convention on Human Rights (ECHR) (right to property), the proportionality test was satisfied; (iii) From the perspective of freedom of contract, it was concluded that a legitimate balance was struck between FIFA's regulatory autonomy and investor interests. RFC Seraing brought this decision before the Swiss Federal Tribunal, which, by decision 4A_260/2017 dated 20 February 2018, upheld the CAS ruling.
5. The Swiss Federal Tribunal's Standard of Review: Lex Mitior, Public Policy and CAS Independence
Article 190 of the Swiss Private International Law Act (Loi sur le droit international privé — LDIP) sets out, on an exhaustive basis, the grounds upon which CAS awards may be annulled: improper constitution of the arbitral tribunal, lack of jurisdiction, decision ultra petita or outside the scope of the parties' submissions, violation of the equality of the parties or the right to be heard, and incompatibility with public policy. The Federal Tribunal maintains an extremely narrow scope of review over CAS awards, and interprets the concept of "public policy" particularly restrictively. In 4A_248/2019 (Sun Yang) and 4A_644/2020 (Semenya), the Federal Tribunal reiterated that it does not engage in review on the merits and has supported CAS's function of preserving the autonomous character of sports law. In Mutu and Pechstein v. Switzerland, the ECtHR examined CAS's standards of independence with regard to the constitution of arbitral panels and the right to a fair trial (Article 6 ECHR), but ultimately upheld the institutional legitimacy of CAS.
6. Doyen Sports v. UEFA and the European Commission Complaint
The investment fund Doyen Sports brought proceedings against FIFA and UEFA before the Brussels Commercial Court, raising claims of breach of EU competition rules and violation of the freedom to provide services. A complaint was also filed with the European Commission to the same effect. In 2017, the Brussels Commercial Court rejected a substantial portion of Doyen's arguments; however, a preliminary reference was made to the CJEU. An important extension of the process is the proceedings of the RFC Seraing v. FIFA file before the Belgian Court of Appeal. In 2024, the Belgian Court of Cassation rendered a decision containing significant questions regarding the effectiveness of the CAS award under Belgian law; a CJEU preliminary ruling is awaited to resolve the tension between CAS and EU law at the European level.
7. The CJEU and the Impact of EU Law: Reflection of the ISU and Super League Judgments on Sports Regulations
Three critical judgments of the Court of Justice of the European Union in December 2023 — International Skating Union (C-124/21 P), European Superleague Company (C-333/21), and Royal Antwerp (C-680/21) — have imposed significant restrictions on the regulatory powers of sports federations. The CJEU has clearly confirmed that regulations of sports federations affecting economic activities are subject to EU competition law (Articles 101/102 TFEU) and to fundamental freedoms. This jurisprudence reinforces the prospect that the FIFA TPO prohibition will be subjected once again to review under EU law in the coming period. In particular, the proportionality test adopted in the analysis of the "home-grown player rule" in the Royal Antwerp judgment is also applicable to the TPO prohibition.
8. Application in Türkiye: TFF Regulations and the Approach of the Turkish Judiciary
The Turkish Football Federation (TFF) has reflected the TPO prohibition provisions of the FIFA RSTP into its domestic regulations and, under the TFF Regulations on the Status and Transfers of Professional Footballers, provides that agreements contrary to the TPO prohibition shall be deemed invalid. In disputes before the Arbitration Board and the Dispute Resolution Chamber, transfers of economic rights, agent commissions, and transfer payments are carefully evaluated as to whether they fall within the scope of the prohibition. In the jurisprudence of the 11th Civil Chamber of the Turkish Court of Cassation, there is an established approach that sporting disputes are resolved through the autonomous arbitration process, and that the FIFA-CAS rules applied in this process are not considered contrary to Turkish public policy.
9. CAS Disciplinary Decisions: Twente, Sevilla, Santos and Sporting Lisbon
Numerous clubs have faced disciplinary sanctions in the enforcement of the FIFA TPO prohibition. FC Twente, with TPO agreements at the root of its financial crisis in the Netherlands, was investigated both by the KNVB and FIFA, and was sanctioned with transfer bans in the CAS 2016/A/4490 case. Sevilla FC was investigated by FIFA in relation to the TPO structure arising during Geoffrey Kondogbia's transfer from FC Sevilla to AS Monaco; CAS files confirmed that economic-rights sharing agreements between clubs and agencies fall within the scope of the prohibition. Santos FC was charged with a TPO breach due to Geuvânio's transfer to Atlético Mineiro in Brazil, and Sporting CP Lisbon became the subject of proceedings before both FIFA and CAS in relation to the economic-rights agreement entered into with Quality Sports Investments in connection with Marcos Rojo's transfer to Manchester United.
10. Economic Effects of the TPO Prohibition and Critical Analysis
The economic effects of the TPO prohibition are debated. Proponents of the prohibition argue that it prevents conflicts of interest by third parties with respect to player transfers, strengthens the financial discipline of clubs, and provides protection against the commercial objectification of players. Critics, on the other hand, contend that it dries up the legitimate financial resources of South American and Eastern European clubs in particular, increases information asymmetry in the transfer market, pushes financial mechanisms that could be lawfully structured into grey areas, and creates an imbalance in favour of major European clubs. The use of alternative mechanisms such as crowdfunding, non-equity investment funds, and club-level asset acquisition as workarounds for the TPO prohibition continues to create legal uncertainty.
11. Practical Recommendations: TPO Compliance, Risk Assessment and Contractual Structuring
Critical recommendations for clubs, player representatives, and investors operating in the field of sports law are as follows: (i) prior legal review of all agreements that may fall within the scope of Article 18ter, (ii) careful preservation of the distinction between agency agreements and economic-rights agreements, (iii) clear reflection of the distinction between investment-fund structures established via a club-asset acquisition model and individual player-rights acquisition models, (iv) meticulous compliance with FIFA Transfer Matching System (TMS) notification obligations, (v) structuring of renewal or extension transactions of transitional-period agreements so as not to constitute a breach of Article 18ter, (vi) drafting agreements that clearly include CAS arbitration clauses and pre-determined applicable law and language choices.
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