The power of FIFA as a non-state actor – a study on tokenization in light of FIFA RSTP art. 18ter

Abstract

The prohibition of third-party ownership (TPO) in football is laid down in the FIFA RSTP and refers to the ownership of a player's financial rights. In practice, such ownership occurs when players enter into contracts that give third parties the right to a share of their future transfer fees. Developments, further boosted by the COVID19 pandemic, have shown that the potential for new revenue streams offered by the crypto world is also attractive for the sports sector. An example is tokenization, where a share of a player's future transfer fee is tokenized and traded on the market to which it belongs. In the light of current legislation, the definition of such tokens, as well as their tax treatment, is globally unclear and can vary from jurisdiction to jurisdiction, the question often being whether tokens are currencies or securities? If tokens are used by football stakeholders as a new source of revenue, we are in a situation where several worlds collide: the decentralized governance inherent to tokens, the lex sportiva and the principles of sovereignty and jurisdiction. In order to define tokens, we can look at the principles of international taxation to determine whether the tokenization of a player's share of a future transfer sum and thus its placement on the market is an act that can be considered a TPO under article 18ter of the FIFA RSTP. In this light, it is possible to analyze the question of whether FIFA, as a non-state actor, has the competence to intervene in trading that takes place in the digital environment or whether it should be able to do so. The thesis seeks to clarify the relationship between the various legal challenges and the legal situation in so far as it can be seen that legislation and technological developments are not keeping pace.