i organisation of sports clubs and sports governing bodies
Argentina has a long and well-known sports tradition. Attempting to write a review of the regulations of all sports in Argentina is a daunting task and would, undoubtedly, exceed the scope of this chapter. It is therefore necessary to establish an, albeit arbitrary, narrower scope.
To that end, we have made an initial distinction between team sports and individual sports. This review will focus on the former. Once this distinction is made, it is necessary to choose a subset of the existing team sports. For these purposes, we have chosen to focus on those sports where, at the national team level, Argentina is considered to be among the world's elite. This means sports for which a global competition exists and the Argentine national team has reached no less than the quarter finals in the most recent occurrence of the global competition.
Thus, this chapter will focus on the following sports: football, rugby, field hockey, basketball and volleyball.
However, the Sports Law2 regulates the promotion of sporting activities throughout the country. The stated purpose of the Sports Law is to promote sports in all its forms.
The Sports Law defines a sporting institution as an association whose stated purpose is the practice, development, maintenance, organisation and representation of sport or any of its variations. The Sports Law further creates a Registry of Sporting Institutions. Registration in said registry is a requirement to participate in organised sports, both amateur and professional.
In 2019, by means of Decree 92/2019 the Agencia de Deporte Nacional (the Agency) was created as the Sports Law's new enforcement body. One of the Agency's main purposes is to contribute to the operational efficiency required in sports.
i Organisational form
Each particular sport is regulated by its own governing body. At the national level, only in football are the individual clubs associated with the governing body. For rugby, field hockey, basketball and volleyball, clubs are associated with a regional federation or association, and the regional federations or associations are then associated with a national confederation.
This confederation issues the regulations at a national level and is then associated with the international sports governing entities.
Thus, football is regulated by the Association of Argentinian Football (AFA), which is further affiliated to both the South American Football Confederation and FIFA (a regional South American entity and worldwide entity, respectively). Rugby is regulated by the Argentine Rugby Union (UAR), which is further affiliated to the International Rugby Board. Hockey is regulated by the Argentine Confederation of Hockey (CAH), which is related to the International Hockey Federation. Basketball is regulated by the Argentine Confederation of Basketball (CABB), which is related to the International Basketball Federation. Finally, volleyball is regulated by the Argentine Volleyball Federation (FeVA), further related to the International Volleyball Federation.
The regulatory entities and associations, at both the regional and the national level, adopt the legal form of a not-for-profit civil association.3 Further, teams are also civil associations and are not to be profit-making entities. There are historical reasons why this is the case: where teams were originally formed within neighbourhood clubs, the clubs eventually adopted this organisational form, and this has been maintained over time.
Even with the advent of professionalism (within the limits that will be referred to in this chapter) and the success of Argentine players and teams at a global level, the basic entity that unifies the players is a not-for-profit entity. And it is unlikely that this will change in the near future. As mentioned, the Sports Law defines a sporting institution as an association. This would seem to exclude any type of company or corporation being considered as a sporting institution and allowed to participate in organised sports. By way of example, the AFA regulations expressly prohibit affiliated entities from being commercial entities.4
Decree 92/2019 established a quota for the lists submitted for the election of members of the board of directors in first-grade civil associations. In this sense, the lists must be composed of a minimum of 20 per cent of women and young people, altogether.
In addition, the above-mentioned decree set a maximum period of two years for mandates of presidents of first and second degree civil sports associations, civil sports associations of national representation and presidents from the Sport and Physical Activity Institutional System.
ii Corporate governance
As mentioned, other than the Sports Law, which is a general law related to the promotion of sports in and of themselves, there is no unified regulation for sports entities. Having said this, there are certain general principles that apply to all clubs and institutions.
Most of these principles do not vary from general corporate governance principles for associations or other legal entities in Argentina. A description of all these principles would vastly exceed the scope of this chapter; however, these generally refer to a prudent administration of resources; accountability and transparency in the decision-making processes; and conflict of interest regulations.
However, there are certain specific requirements that are imposed by the different governing entities. In this sense, for instance, the AFA requires that the clubs affiliated to the AFA have separate accounting for professional football-related matters.
iii Corporate liability
There are no specific statutory provisions for liability of managers and officers of a sports organisation. General corporate liability provisions would apply. Sports entities are not corporate entities (in the sense that corporate entities are commercial entities). As mentioned, sports entities are associations that are not for profit.
In that sense, in general, there are no specific regulations relating to sports that attach liability for managers and officers for the simple fact that the individual occupies this a role. The main exception to this lack of regulation is Law 23,184, as amended (for the prevention of violence in sporting events), which establishes the liability of managers and officers, as such and not in their personal capacity, for violations to the obligations imposed under said law.5
The regulatory documents of each of the sports governing entities establish that managers and officers of sports organisations may be subject to disciplinary action if they commit any of the actions described in the relevant regulations in their role as managers. Liability is not given because the individual is an officer of an entity, but the action that the individual committed is punishable because the individual is a manager.6
Likewise, managers and officers are subject to anti-doping regulations, not because of the liability of the club they represent, but a personal liability where they have to have been personally involved.7
ii THE DISPUTE RESOLUTION SYSTEM
There is no single dispute resolution system for sports. Each sport has its own dispute resolution system with its own regulations and systems of appeals. In general, most sports governing entities establish an independent dispute resolution system for disciplinary matters, where most establish a two-tiered system for disciplinary hearings and measures.
The references below are to the national governing body of each sport. Most regional entities have similar, if not identical, regulations. Additionally, most entities replicate, at least partially, the general disciplinary systems established by the global governing entity.
i Access to courts
AFA regulations expressly state that the decisions issued by the Tribunal of Sports Discipline are final and unappealable, except in certain cases where the sanction is particularly burdensome.8 Further, among the obligations of the AFA's member clubs is the obligation not to access judicial courts in any dispute that a member may have with the AFA.9
This being said, certain matters are referred to judicial courts, mainly relating to employment matters. Further, civil liability matters are also referred to courts and if the plaintiff is a player, the action that caused the damage would exceed ordinary play and disciplinary action taken by the sport's governing entity.
For rugby,10 field hockey,11 basketball12 and volleyball13 the applicable regulations establish a two-tiered system for disciplinary measures, with an initial tribunal and an appellate tribunal. Access to courts is granted, as none of the regulations specifically prevents access to courts or establish a mechanism of access to courts.
ii Sports arbitration
Given that each sport's governing entity has its own method of discipline, there are no provisions for sports arbitration for matters related to incidents at sporting events.
Further, employment matters are barred, by applicable labour regulations, from being referred to arbitration. Thus, sports matters related to employment cannot be referred to arbitration.
Finally, civil liability matters are, by their very nature, not subject to arbitration through a pre-agreed arbitration agreement.
Enforceability of decisions of the governing bodies is not so much a legal issue as a factual issue. Although the governing entities have the power to suspend any entity that does not accept a disciplinary decision,14 the most relevant power for enforcing decisions is the monetary power each governing body has over the clubs and entities.
Each of the sports governing bodies controls the financing of the sport and the clubs where that sport is practised. Therefore, any decision by any disciplinary tribunal that is not accepted and enacted by a club may be met with de facto monetary sanctions. Thus, once instances of appeal are extinguished, sports clubs and teams accept the decision issued and act in accordance with said decision.
III ORGANISATION OF SPORTS EVENTS
i Relationship between organiser and spectator
It is generally understood that the relationship between the organiser of a sports event and a spectator is a contractual relationship. However, this relationship is not built on a written contract, but rather an implied contract. Through this implied contract the organiser undertakes to organise a sporting event with certain characteristics (regarding participating teams, athletes, venues, timing, etc.), which the spectator accepts through the acquisition of a ticket to said event.
Thus, given the existence of an implied contract and not an actual written agreement between the organiser and each individual spectator, the contract is best understood as a consumer contract. The spectator is a consumer of an organised sports event and, therefore, spectators can avail themselves of the defences included in consumer protection regulations. Most importantly, other than the safety and security provisions that are described in subsection vi, organisers of sports events must be very clear in the promotion and publicity of the event so that the event meets the expectations created by the promotional materials. Any clear discord between the promotional materials and the actual event may give rise to responsibility for false or misleading advertising, for instance.
ii Relationship between organiser and athletes or clubs
The relationship between the organiser and athletes or clubs is different. For the purposes of this particular section, we will not analyse the ordinary annual competitions of each particular sport (such as the first division football tournament or the national basketball league, to name two), but specific, one-off special events.
In these cases, the organiser would generally secure athlete or club participation through a specific contract detailing the obligations of either club or athlete. In the case of individual athletes, sometimes these contractual provisions may be considered labour provisions and subject to labour regulations. However, this must be analysed on a case-by-case basis.
The contracts in these cases are generally thought of as service agreements or works for hire, where the club undertakes to perform a service (play a sport) for the benefit of the organiser. It is advisable that, in addition to the general contractual provisions that are usual in contracts in Argentina, certain regulations are to be included regarding publicity of the event, athlete participation in promotional materials, pre- and post-competition press events and other event-specific regulations.
iii Liability of the organiser
The foundation of the civil liability of the organiser of a sports event can be found in a single article of a single law: Article 51 of Law 23,148 (as amended by Law 24,192) states that 'the entities or associations participating in a sporting event are jointly and severally liable for the damage that may occur in the stadiums.'
The organiser is therefore liable not only for the safety of the athletes and spectators during an event – and further subject to the provisions of Law 23,148 (as amended by Law 24,192) – but also for general security matters, such as theft prevention, damage and accident prevention. Therefore, the organiser of a sports event may be found liable for all types of damage that may occur during the event.
In general, and other than the violation of the riot prevention regulations indicated in subsection vi, the organiser of a sports event will not be directly liable for criminal acts, since criminal liability is attributable to the individual who carries out the criminal act. However, investigation of alleged offences will be either initiated ex officio or through a criminal complaint filed by the victim, depending on the alleged offence.
iv Liability of the athletes
In general, the liability of athletes for damage that occurred during ordinary play conditions is limited and subject to the disciplinary actions and measures of each club and sports governing body. However, for damage that goes beyond ordinary actions of play, athletes may be liable.15
In the case of civil liability claims (i.e., claims for damages), it is the damaged party who must initiate and follow the case. As is usual for civil liability matters, there must be a causal link between the action of the athlete and the damage received by the other party.
There are no specific regulations regarding criminal liability matters for athletes, and thus general regulations apply. In these cases, criminal offences are generally investigated ex officio by the authorities. However, certain matters are dependent on private impulse, such as minor lesions. Therefore, the investigation for criminal liability of an athlete would depend on the type of alleged offence.
v Liability of the spectators
Spectators are subject to some civil and criminal liability regulations as members of an organised society. In addition, there are particular instances where actions carried out related to sports events may give rise to particular criminal liability. For instance, a spectator may be found criminally liable for the interruption, even temporary, of a sporting event carried out in a public venue; or in cases of destruction of private property in the event of a sporting event (where the criminal sanctions are greater than ordinary property damages).
The intervening judge may impose on the spectator the additional penalty of being banned from all sporting events or that particular stadium, or from acting as a manager, officer or even player of any given sport.
vi Riot prevention
Law 23,148 (as amended by Law 24,192) is aimed at preventing violence in sporting events. The Law imposes several obligations and prohibitions to organisers of sporting events, athletes, spectators and authorities, the violation of which constitute criminal offences.
The Law is applicable in cases of a sporting event, in either the stadium or arena and the surrounding areas, before, during and after the event. For instance, among the prohibited matters is having firearms or explosives in the areas indicated during a sport event.
Certain violations may be considered criminal in nature, while others are merely misdemeanours. Among the misdemeanours are rioting and incitement to rioting. In that sense, for instance, inciting violence, throwing objects (including lit items or items that may cause substantial damage) or creating 'avalanches' in the bleachers and stands are considered misdemeanours, and the sanction is the prohibition to access events for a given number of dates of play. However, these are not considered crimes punishable through the regular criminal justice system.
IV COMMERCIALISATION OF SPORTS EVENTS
i Types of and ownership in rights
The commercialisation of rights to sporting events can be divided, mostly, into official and unofficial matches and events.
First, as is further explained in Section V, in Argentina, football is the only professional sport. All other sports are still considered amateur, and therefore there are fewer exploitation rights associated with such sports and they are much less lucrative.
Although each sport has its own set-up, as a general rule, the regulating entity owns rights to the sports events where the participating team is the official national team. This includes broadcasting rights, sponsoring and merchandising.
Additionally, the regulating entities own the rights of sponsoring, merchandising and broadcasting official competitions at the national level. The governing entities then execute commercialisation agreements with different entities regarding sponsoring, merchandising and broadcasting rights. Particularly for broadcast rights, this generally involves long-term agreements with either networks or other entities to broadcast local and national team matches.
However, for certain global events, the organising entity may have agreements with broadcasters that are different from the 'official' broadcaster of the national team or the local tournament. This is subject to the global agreement, and said global agreement prevails.
In Argentina, the most pertinent of broadcast rights relates to football. Currently, the broadcast of the national first division football tournament is done jointly by 21st Century Fox, Inc, through its subsidiaries, and Turner Broadcasting System Latin America, Inc, through its subsidiaries, which obtained these rights upon licence from AFA and the Argentine Professional Football Superleague after the termination of the agreement with the national government for the programme Fútbol para Todos.
Further, Law 25,243 establishes the obligation that all football matches where the Argentine national team participates must be transmitted live through non-pay TV throughout the country. Additional regulations establish that when Argentine teams (although not the national team) reach decisive instances of regional competitions, the matches are also to be broadcast in this same manner.
Additionally, each individual team or club has sponsoring and merchandising rights and agreements regarding team branded materials. Finally, each individual athlete has the total rights to their own image, notwithstanding any right that the clubs and governing entities have to, within their own rights, broadcast or publicise images of the athlete.
ii Rights protection
In general, violations of sports-related rights are mostly found in the area of merchandising. In that sense, there are two different instances that can be distinguished.
On the one hand, there are the 'generic' team merchandise products that are not intended to look like the original, for example, jerseys that simply reproduce the team colours. This is mostly found in the case of national team jerseys and the 'big' team jerseys. On the other hand, counterfeit products exist that are branded as the original product while not being original brand merchandise.
In both cases the issue deals with proprietary rights and intellectual property rights, and the measures available to the teams and sportswear manufacturers are those available under general intellectual property regulations.
Broadcast rights have rarely been violated. However, given the recent termination of the state-owned programme Fútbol para Todos and the return of the pay-per-view system regarding the national first division football tournament, 21st Century Fox, Inc, together with Turner Broadcasting System Latin America, Inc have stated that they believe their broadcast rights will be severely infringed, particularly through the use of the internet, as a response from the public who became accustomed to the free-of-charge system run by the government in recent years; so to this end, the current licensees of broadcast rights have taken several steps to be prepared for a copyright battle in courts against potential infringers in the coming years.
iii Contractual provisions for exploitation of rights
There are no mandatory contractual provisions for the exploitation of sports-related rights. The usual contractual provisions should be included, particularly regarding termination rights.
Rights holders are the governing entities, which have substantial negotiating power, particularly given the importance of Argentine national teams. This makes the teams a desirable commodity for sponsors, merchandisers and broadcasters alike.
iv Ambush marketing
In connection with the commercialisation of sports events and sponsorship rights, there is a practice globally known as ambush marketing, where advertisers work to connect their product with a particular event or team in the minds of potential customers, without having to pay sponsorship expenses for the event or team sponsorship.
Argentina has no specific regulations on ambush marketing or protection of sponsored events. In addition, there are no special statutes on unfair competition. Judicial cases on ambush marketing are scarce. The legal analysis of these types of infringements was focused on traditional trademark law. However, the application of traditional trademark law to advertising and ambush marketing has been troublesome, since this kind of advertising does not usually mention trademarks. Therefore, there is no trademark use in the sense of statute.
Another legal avenue to combat this kind of conduct is the recent unfair competition regulation.16
In 2002, FIFA filed a complaint accusing Pepsi of using 'below-the-belt techniques that imply it is an official sponsor of the World Cup tournament, when in fact its rival Coca-Cola has paid £20m for that privilege'. FIFA achieved a court ruling in Argentina banning the Pepsi TV and press advertisement that suggested a 'presumed sponsorship relationship between Pepsi and the FIFA World Cup'. The Pepsi campaign used the words 'Tokyo 2002' alongside famous footballers and associated them with the Pepsi logo.17
Argentine courts validated a claim on ambush marketing and ordered the defendant to immediately cease the advertising campaign being objected to and remove already published advertisements in any medium.18
In this particular case, the advertisement campaign being objected to showed Javier Mascherano, one of the major players of the Argentine football team in the Brazil 2014 World Cup, in a Unilever advertisement for the laundry detergent trademarked 'ALA'. The advertisement had been launched on TV and on the internet a few days before the 2014 World Cup started, portraying a child (representing Javier Mascherano) playing football with other children and wearing a t-shirt in the Argentine colours – white and light blue (at this stage, there had been no use of any AFA trademarks). Later in the video, Javier Mascherano appears wearing a blue t-shirt with 'No. 14' on his back (his number as a player in the 2014 Brazil World Cup), carrying a ball in his hand and entering the football field through a tunnel. Finally, an announcer's voice is heard off screen, saying: 'ALA, official sponsor of all we've learnt growing up'.
Based on consumer law and unfair competition provisions, Division III of the Federal Court on Civil and Commercial matters reversed the decision of the lower court denying the injunction filed against Unilever and ordered the defendant to immediately remove the advertising campaign using the phrase 'official sponsor of all we've learnt growing up'. The decision was welcomed by scholars.19
v Professional sports and labour law
Argentine elite sports have the distinction of probably being among the only sports that are, to date, mostly amateur.
Football was the only sport played professionally until the creation of a professional rugby team within the UAR for the SuperRugby championship. In general, rugby and field hockey are purely amateur sports (where the regulations of the UAR specifically prohibit professional athletes).20 However, given the recent international success of Argentine teams, the sport's governing entities have created elite 'professional' teams made up of the sport's best players so that they may dedicate themselves full-time to the practice and training of the sport.21 In these cases, the players are paid by the relevant governing entity, and not affiliated with a particular club.
i Mandatory provisions
Given that football is the only professional sport at the club level, it is the only sport where the athletes are employed by the club in which they perform and, therefore, employment regulations come into play.
The employment of professional football players is regulated by Law 20,160 and further regulated by the applicable collective bargaining agreement (CBA) (currently CBA 557/2009). The applicable regulations establish that the contract may be between one and five years, with no extension provision. The relevant contract must be registered with AFA.
The contract must detail compensation items, which must include: monthly salary, bonus for official matches won, bonus for friendly matches won or tied bonus for qualification to national or international competitions. The applicable CBA sets forth the minimum amounts for each item.
Given the recent introduction of a professional rugby team by the UAR and its limited amount of professional athletes, there is no applicable CBA. As a consequence, those athletes' rights and obligations are ruled by their individual employment contracts and, also by Labour Contract Law 20,744.
ii Free movement of athletes
The law does not prevent a limit on foreign players in local professional teams. In fact, the applicable CBA to football players establishes that a maximum of four professional players per club may be foreign nationals.22 There is an exception to this, which is if the foreign player performed in the club's lower divisions for a period of no less than four years prior to his or her 21st birthday (at which point he or she must sign their first contract). In this case, the player will not be considered a foreign national for the duration.
iii Application of employment rules of sports governing bodies
In general, Argentine labour law is considered public policy and therefore the parties may not agree to terms contrary to the principles of the law. However, specific regulations may be included, as long as they do not violate the principles of the applicable labour regulations (the General Labour Law, Law 20,160 and the applicable CBA).
vI SPORTS AND ANTITRUST LAW
There is no development of antitrust law as related to sports in Argentina. As mentioned in Section I.i, clubs and entities are civil associations and not for profit, with the exception of football. As such, there is little scope, at present, for the development of antitrust regulations related to sports.
viI SPORTS AND TAXATION
In general, Argentine-sourced income is taxable even for non-residents for one-off events.
In this regard, gross income earned by non-resident athletes present in Argentina on a temporary basis for a period not exceeding six months in a calendar year is subject to a withholding of 24.5 per cent (32.45 per cent with grossing up). When the payment is made to an entity, the general withholding rate applicable is 31.5 per cent (45.99 per cent with grossing up).
Under double taxation treaties executed by Argentina, income derived by foreign athletes from their personal activities exercised in Argentina, or by another person or entity in respect of the activities carried out by athletes, may be taxed in Argentina in accordance with its domestic rules. Nevertheless, in most cases, the income shall not be taxable in Argentina if the visit to the country is wholly or mainly supported by public funds of the state where the athlete is a resident.
However, when both the club or athlete and the organising entity (the entity that makes payment to the athlete or club on its own behalf) are non-Argentine residents, there is a mechanism in place under Argentine law for payment of the tax.
Finally, the Argentine Income Tax Law (Law 20,628) provides for an exemption for income obtained by sports associations that do not have a lucrative purpose. This exemption is extended to foreign sports associations under a reciprocity rule.
viiI SPECIFIC SPORTS ISSUES
Doping, or rather, the prohibition of doping in sports, is regulated for all sports generally through Law 24,819.
The above-mentioned Law is applicable to all national sports events. International sporting events are excluded from the scope of the Law, and a specific reference is made that in international sporting events the regulations of the applicable international body or the International Olympic Committee will apply.
Doping is defined as the use of prohibited substances or methods, regardless of the medium of administration, by sportsmen and women before, during and after a competition. Doping is also considered to be the administration of the prohibited substances or methods to animals participating in a sporting event.23 The Law refers to an annex that lists the prohibited substances and methods. This list is updated from time to time. The Law states that it is applicable not only to the individual participating in sports, but also to individuals who facilitate or incite doping in others, provide prohibited substances or methods or impede anti-doping controls.
The penalties for the individual are: suspension of the practice of regulated sports for between three months and two years; and suspension of a minimum of two years in the case of reiterated offences, as well as disqualification or loss of points in the relevant competition. To determine whether it is a reiterated offence, violations of doping regulations abroad will be taken into account.
For managers and trainers who participate or incite doping, or impede anti-doping controls, the sanction will be two years' suspension from their role. In the case of a repeat offence, the suspension may be a lifetime ban.
Additionally, managers and trainers are subject to criminal sanctions, including prison terms of between one month and three years, if they incite or participate in doping. If the substances provided for doping purposes are further recognised as illegal narcotics as per the updated listing of illegal narcotics, the prison term will be increased to between four and 15 years.24
Clubs and entities may also be sanctioned, and said sanction entails the suspension of participation in the National Sports Fund and the Registry of Sports Institutions.
Organised betting on sports events is very strictly regulated in Argentina through Law 25,295, the Sports Forecast Law. The stated purpose of the Law is to generate resources to be applied to the financing, promotion, organisation, participation and development of sports and the contribution to the prevention of violence in sports.
The Law further defines sports forecasts as any game or betting instance the result of which is related (totally or partially) to a sporting event of any sort, excluding horse racing.
At a national level, betting on sports forecasts is managed and regulated by the national lottery agency. Law 25,295 specifically prohibits any sort of sports forecast contest or game that is not exploited or commercialised by the national lottery.25
In essence, therefore, all betting in sports is state regulated. Any sort of betting not regulated by the national agency would be considered illegal betting and subject to the penalties related to prohibited gambling in each relevant jurisdiction.
The Sports Law establishes the fixing of matches as a criminal offence and specifically establishes that the individual that offers, gives or promises compensation to facilitate or assure the irregular result of a sporting event, or the irregular performance of a participant, shall be sanctioned with a prison term of between one month and three years. This prohibition is for throwing the match or competition; that is to say, prohibiting payment for underperformance of athletes against their own interests.
Additionally, each sport regulatory entity may have specific sanctions in its disciplinary regulations addressed to players, officers of the entities and referees and match officials both for offering and accepting payments to benefit or harm a specific team in a given event. The sports regulations address further participation in events, and any sanctions that may be imposed are in addition to the criminal sanctions imposed by the Sports Law.
In certain sports, such as football, players often receive additional compensation for successful results, for particular matches, advancing to further rounds in competitions or winning local tournaments. These are usually granted by the club or team, and are generally within the compensation scheme of the player.
However, there is a grey area still to be determined, which is when one team or individual offers an 'incentive' to players or teams to play to the best of their ability since an adverse result of the opposing team benefits the 'offering' individual or team. In football, said incentive payment is considered illegal and the entity that offers the payment is subject to suspension of a term of between four months and two years.26
iv Grey market sales
The only sport that has sufficient following for grey market sales to occur and potentially be worthwhile for resellers is football. None of the other sports discussed in this chapter have sufficient following for grey market sales to be an issue. Additionally, access to first division matches is neither complex nor expensive where, in most cases, a nominal amount for access to the stadium or club is paid.
Grey market sales are more frequent in football and national team matches (for all the sports mentioned). For national team matches, tickets are sold through authorised dealers and agencies. However, resale of the tickets is a widespread practice, mostly through online 'market' sites (similar to eBay, which has no presence in Argentina). This resale is not legal, although it is very difficult to prevent and sanction it, since it is not a crime but a misdemeanour.27 The sanctions are fines, which are not very significant. However there have been several cases against online platforms reselling football tickets.
IX AFA IN CRISIS
The AFA has been the victim of a power struggle since Julio Grondona passed away in 2014, while also being embroiled in the FIFA corruption scandal. The AFA, after several setbacks, finally managed to elect a new president, Claudio Fabián Tapia, on 29 March 2017.
Further, the Argentinian government is investigating the AFA for alleged irregularities in the Fútbol para Todos programme.
Since 20 March 2020, owing to the national lockdown imposed by federal authorities all sport events have been suspended. With respect to football, the AFA has been in discussions with the government to create a protocol to return back to games with certain safeguards.28
XI OUTLOOK AND CONCLUSIONS
Argentine sports, at least those that are the focus of this chapter, are among the world's elite. Nevertheless, the discipline of sports law has not been developed to its full potential.
This is probably owing to a combination of factors, including the amateur status of most sports, and the not-for-profit status of all clubs and governing entities. This means that the scope for sports law is narrow and limited.
1 Pablo A Palazzi is a partner at Allende & Brea.
2 Law 20,655, Article 16.
3 For a history of how these organisations were formed in Argentina with respect to football see Abreu, El fútbol argentino. Historia jurídico política de su organización, Marcial Pons, 2016.
4 See Article 5 of the by-laws of the AFA, where the entities are mandated to not become commercial entities ('ni convertirse en sociedades comerciales').
5 See Section III for further clarification.
6 See, for instance, AFA Regulations of Transgressions and Penalties, Chapter XVI.
7 See Section VIII.i for more details.
8 See AFA By-laws, Article 13 and Regulations of Transgressions and Penalties, Article 40.
9 See AFA By-laws, Article 5.
10 UAR regulations of procedures, sanctions and recourses of the Argentine Rugby Union, Article 38.
11 CAH Regulations of the Disciplinary Tribunal, Articles 15 et seq.
12 CABB Penalty Code, Articles 52 et seq.
13 FeVA Procedural Code of the Disciplinary Tribunal, Articles 79 et seq.
14 See, for instance, AFA Regulations of Transgressions and Penalties, Article 75.
15 For instance, in the case Santiago Fabián Santero v. Juan Guillermo Lobato and others (CNCiv, Sala I, 23 December 2003), the appellate tribunal found Mr Lobato liable for damages in favour of Mr Santero after Mr Lobato had punched Mr Santero during a rugby match with enough force to damage Mr Santero's jaw, beyond ordinary instances of play.
16 See Decree 274/2019.
17 See Federation Internationale de Football Assocation c/ Pepsico de Argentina S.R.L. S/ Medidas Cautelares. Causa No. 4422/02. Juzgado Civil y Comercial Federal Nº 1, Secretaría Nº 1. 03/06/02.
18 This ruling was issued in the case Asociacion del Fútbol Argentino and others v. Unilever de Argentina SA (Federal Court Division III, 06/10/2014).
19 For more information on this ruling, see Castrillo, 'Ambush Marketing in Argentina, LA LEY2014-D, 162' and Rizzo Jurado and Pablo Palazzi, 'Argentine court validates first claim of ambush marketing', Journal of Intellectual Property Law & Practice (Oxford Journals), 19 September 2014.
20 See UAR by-laws, Article 5, where it states that the member entities must 'exclusively' promote the sport between amateurs.
22 CBA 557/2009, Article 31.
23 Law 24,819, Article 2.
24 Said listings can be found in Law 17,818 (groups I to IV); Law 19,303 and the updated listing of the International Narcotics Control Board of the United Nations.
25 Law 25,295, Article 19.
26 AFA Regulation of Transgressions and Penalties, Article 74.
27 In the city of Buenos Aires this is prohibited under Article 91 of the Contraventional Code of the City of Buenos Aires.
28 See Cómo se jugará el torneo de fútbol después de la pandemia: los tres borradores que se manejan, Clarin, June 29, 2020.