The Collision of the EU Legal Framework and FIFA/UEFA Regulations

Transcription

1 The Collision of the EU Legal Framework and FIFA/UEFA Regulations A Sport Legislation and Fundamental Freedoms Perspective Carlijn Boot (606972) Tilburg University Faculty of Law Department International and European Law Master International and European Public Law Tilburg, August st Supervisor: W.N.A van Lit LLM 2 nd Supervisor: mr. dr. H. Oosterom-Staples

2 The Collision of the EU Legal Framework and FIFA/UEFA Regulations: A Sport Legislation and Fundamental Freedoms Perspective CHAPTER 1 INTRODUCTION... 3 CHAPTER 2 ESTABLISHED EU LEGISLATION CONCERNING SPORT AND FUNDAMENTAL FREEDOMS PERIOD FREEDOM OF MOVEMENT WALRAVE AND KOCH THE BOSMAN CASE PERIOD DECLARATION ON SPORT 1997 AND THE MECA-MEDINA CASE THE WHITE PAPER ON SPORT PERIOD 2009 ONWARDS THE BERNARD CASE CONCLUSION CHAPTER 3 THE EUROPEAN FOOTBALL MODEL THE FIFA AND THE UEFA FIFA AND UEFA REGULATIONS AND EU INTERACTION THE BOSMAN CASE FIFA REGULATION FOR THE STATUS AND TRANSFER OF PLAYERS COURT OF ARBITRATION FOR SPORT THE SIMUTENKOV CASE THE HOMEGROWN RULE AND 6+5 RULE FIFA REGULATION FOR THE STATUS AND TRANSFER OF PLAYERS CONCLUSION CHAPTER 4 THE COLLUSION AND FRICTIONS BETWEEN THE FIFA/UEFA REGULATIONS AND EU LEGISLATION WHEELING AND DEALING OF MINORS LOOPHOLES IN THE FIFA REGULATIONS SOLUTIONS? THE HOMEGROWN RULE AND 6+5 RULE CRITICS JUSTIFICATIONS FOR THE 6+5 RULE CHAPTER 5 CONCLUSION AND RECOMMENDATIONS RECOMMENDATIONS BIBLIOGRAPHY BOOKS AND ARTICLES OTHER SOURCES JURISDICTION LIST OF ABBREVIATIONS

3 Chapter 1 Introduction Things are neither clear nor clean in the world of football right now and many people recognise this reality Diego Maradona From the mid seventies there have been several cases concerning the legal position of sports players within the European Union (EU). In particular football players and their transfer and fundamental freedoms have been subject of discussion. In first instance, the position of these football players is regulated by the two most important bodies in the European football industry: the Fédération Internationale de Football Association (FIFA) and the Union of European Football Associations (UEFA). These bodies collaborate in establishing a framework of regulations applicable to the football players and clubs in Europe. Some judges argue, however, that these bodies establish regulations that restrict the free movement of football players and thereby infringe EU law. The EU is the second body controlling the football scene. When two powerful organisations as the FIFA and UEFA, on the one hand, and the EU, on the other, try to control the same field it seems inevitable, that this will collide. The case of Walrave and Koch, made clear that sports rules are subject to EU legislation as long as it constitutes an economic activity, (later confirmed in the Meca-Medina case 1 ), and opened a Pandora s box with potential conflicts between the EU and FIFA/UEFA legislation. 2 The first important football case which made use of these earlier judgments is Bosman. 3 The European Court of Justice s judgement (further: The Court) in this case states that transfer fee rules, albeit non-discriminatory, directly affect players access to the employment market in other member states and therefore constitute an unjustified obstacle to the freedom of movement of workers. UEFA and FIFA have been trying to get around EU antidiscrimination law ever since, with the 6+5 rule as FIFA s most recent attempt. 4 This rule implies that at the beginning of each match, each club must field at least six players eligible to play for the national team of the country of the club. 5 Although FIFA has been careful to draft the 6+5 rule without reference to the nationality of the players, it is still an ongoing discussion 1 CFI 30 September 2004, case T-313/02, Meca-Medina v. Commission, [2004] ECR II-3291, paragraph 42; ECJ 18 July 2006, case C-519/04 Meca-Medina v. Commission, [2006] ECR I-6991, paragraph ECJ 12 December 1974, case 36/74, Walrave & Koch v. Association Union Cycliste Internationale, [1974] ECR 1405, paragraph 9. 3 ECJ 15 December 1995, case 415/93, Bosman, [1995] ECR I-4921, paragraph L.V. Briggs, UEFA v The European Community: Attempts of the governing body of European soccer to circumvent EU freedom of movement and antidiscrimination labour law, Chicago Journal of international Law , p FIFA, FIFA, Yes in principle to 6+5 rule, 5 February 2008, 3

4 whether or not it will be interpreted by the Court as being a form of indirect discrimination or obstacle hampering the exercise of free movement rights. Another aspect of the FIFA football regulations are the loopholes used by players, clubs and agents to achieve goals. These goals may include attracting and sign new players, conclude transfers and obtaining young players. The use of these loopholes is often at the expense of minors, as they are not included in the regulations provided by FIFA and UEFA. The examples mentioned above indicate that there are infringements of EU law, or at least some tensions and problems between the regulations of the FIFA and UEFA and EU law. It is therefore, important to concretise and define these frictions and problems and investigate possible solutions. The position of the FIFA and UEFA towards the incorporation of sport into the EU legal framework also needs to be critically examined. The football organisations argue that sport should be given a special place within the EU legal order. 6 Hence, they claim an autonomous position within that framework. This way they can establish their own rules without taking into account EU law, in particular the free movement rules. Since the ruling in Walrave and Koch and Meca-Medina, the EU is expanding its influence on sport by establishing a White Paper on Sport and their recent introduced article concerning sport in the Lisbon Treaty. 7 The main research question of this thesis is; where do the EU legal framework and FIFA/UEFA collide, regarding sport legislation and fundamental freedoms? The aim is to investigate how the FIFA and UEFA incorporate EU legislation (with a special focus on sports law and fundamental freedoms) into their policy and define the current problems between the two fields of legislation. Recommendations which could diminish ongoing and potential frictions between the FIFA and UEFA and the EU will furthermore be formulated. Each chapter will lead a step closer to the conclusion in which the main research question will be answered. Eventually this thesis will give an insight of the degree of EU intervention in the regulations of the FIFA and UEFA and where the two legal orders collide. It will describe the key factors in the past and the recent developments and integration of sport into the framework of the EU. As it is not possible or relevant to investigate all the legislation produced by the EU and the football federations, a selection of regulations is made. This 6 FIFA, FIFA and UEFA stress the Vital Importance of Football Autonomy, 26 October 2006, 7 CFI 30 September 2004, case T-313/02, Meca-Medina v. Commission, [2004] ECR II-3291.; ECJ 18 July 2006, case C-519/04 Meca-Medina v. Commission, [2006] ECR I

5 selection is based on the impact they have had on each other s regulations. A regulation can be valued as having an impact, when future regulations are adjusted in order to stay aligned with this regulation. A regulation is also selected, when it is the core of a dispute in the case law concerning a sports issue. This case law gives an illustration on how regulations are weighted against each other, in other words, how regulations impact on each other s substance. When legislation has a value in its own right, however, it will also be discussed, for example the introduction of sport into the legal framework of the EU. With a desk study relevant data will be collected, which is needed to give an overview of the current FIFA and UEFA regulations and relevant EU legislation. Examples of regulations on the part of the EU that should be taken into account are, for example, the White Paper on Sport introduced in 2007 and the new article on sport introduced by the Lisbon Treaty. 8 But also the 1997 Declaration on Sport is included as it was the first time sport was addressed within the legal framework of the EU. Other important articles of the Treaty on the Functioning of the European Union (further TFEU) are the free movement articles that contain the right to move and work freely through the EU, Articles TFEU. Besides the laws of the EU also the rules governed by the FIFA and the UEFA will be taken into account. The regulation on the status and transfer of players is given special attention as it contains the policy and most important rules of the football world. Ideas developed by the FIFA an UEFA will also be looked into, because they can be relevant to discuss the potential problems they can create, such as the the 6+5 rule designed by the FIFA. How these two worlds collide is best illustrated by case law. The focus will be on the football cases, but general sports cases, which have had great influence because of their important judgement, will also be discussed as it will provide a good illustration of the development of sport in general in the EU jurisdiction. The relevant case law will give an insight in how the rules established by the FIFA and UEFA work in practice and what kind of problems football players/clubs encounter. Besides discussing recent football cases, like Bernard, potential frictions between EU and FIFA/UEFA will also be given attention. Other relevant data will be extracted from the literature in which new ideas and perspectives are put forward by their authors which will provide the knowledge to develop an objective perspective on this field of law. All this information will be presented in chronological order. 8 European Commission, Commission of the European Communities White Paper on Sport, 11 July 2007 (COM(2007) 391), 5

6 In the first part, the way in which sport has evolved under the European Treaty and its current position will be described. A general overview of the most important regulations introduced by the EU will be given, but, as mentioned earlier, recent developments will also be discussed. This historic overview will be divided in three parts, each featuring its own important developments. Besides this, it will be pointed out how the laws are reflected in the relevant case law and how, in turn, they influence the development of the European laws. In the next part the focus will be on the world of football and will, therefore, contain a description of its most important bodies. As the focus will be on Europe, only the UEFA and FIFA will be included, as they are the most important governing bodies of football in Europe. The regulations and ideas introduced by these bodies will be discussed and just as in the first part, this will be done in a chronologic order. In the third part I will point out the problems that occur between the two parties. The way in which the two frameworks collide will be revealed through practical examples. The focus will be on recent and potential problems, but important cases of the past will also be discussed In the final section of this thesis a conclusion is formulated which is drawn from the foregoing chapters, answering the main research question. This last section will also consist of recommendations towards the UEFA and FIFA, as well as the EU. These recommendations may help to overcome the frictions and loopholes in the system established through this research. Though, based on the findings of the present thesis, they should not be taken as conclusive as the scope of this thesis was not to consider the implementation of these solutions in a broader framework. The recommendations should be viewed as suggestions and not as fully developed and devised solutions. 6

7 Chapter 2 Established EU legislation concerning sport and fundamental freedoms A question frequently asked is whether sport should be exempted from the legal framework of the EU. 9 The EU pursues an economic common market, while sports organisations are pursuing more social and cultural goals. 10 Until the recent Lisbon Treaty, the EU had no written legal basis in the treaties, to deal with sport issues. The European Court of Justice, however, did attempt to include sport into the legal framework of the EU. Therefore, the EU could only derive their competence, to deal with sport issues, from the established case law. For example, the Court ruled in Walrave and Koch that sports are only subject to EU laws if the rules are applied to situations in which sport is an economic activity. 11 In other words, European law only applies to sport when it concerns an economic activity within the meaning of Art. 2 TFEU. Another point the Court made in Walrave is that EU law does not apply to rules governing the composition of national sports teams. The Court has confirmed this position in other cases, for example Meca-Medina case. Although these cases do not concern football, they set standards and norms for sport in general, including football. Whenever a football case is pending before the courts, rulings of general sports cases can be held applicable on the football situation. As mentioned, until recently sport has not been delegated to the EU, which illustrates the lack of competence at EU level regarding sport in the past. 12 Therefore, sport has been mostly regulated by the Member States themselves. National competition law, for example, applies to the national federation or league and national labour law applies when a contract is concluded between the professional football-player and the club as employer. When disputes emerge, national courts are on the basis of national law entitled to decide in a case between various stakeholders in the area of football. Football organisations are, to a large extent, free to 9 R. Siekmann, Is sport special in EU law and policy, in: R. Blanpain, M. Colucci & F. Hendrickx (red.), The future of sports law in the European Union. Beyond the EU reform Treaty and the White Paper, Alphen aan de Rijn: Kluwer law International 2008, p R. Blanpain, The future of sports in Europe, in: R. Blanpain, M. Colucci & F. Hendrickx (red.), The future of sports law in the European Union. Beyond the EU reform Treaty and the White Paper, Alphen aan de Rijn: Kluwer law International 2008, p ECJ 12 December 1974, case 36/74 Walrave & Koch v. Association Union Cycliste Internationale, [1974] ECR 1405, paragraph M. Whatelet, Sport governance and EU legal order. Present and future, The International Sports Law Journal /4, p. 1. 7

8 organise themselves, but like every other citizen or company, they have to respect fundamental human rights, public order and mandatory law. 13 The EU made some attempts in the past to include sport into their legal framework. In the next chapter, these attempts will be discussed. European regulation of sport can be roughly divided in three time periods, each of which illustrates a different regulatory tactic, from nonintervention to including a provision on sport in the Lisbon Treaty. 14 Each period will be treated by discussing the most relevant regulations concerning sport introduced in that period at the EU level. The way in which the relevant EU regulations are reflected in the case law will also be included. Using this approach, an overview regarding the established laws and regulations regarding sport in the EU will be provided. 2.1 Period There was a long period with little intervention that lasted until the famous Bosman judgement handed down by the Court in The first judicial decisions on sport (Walrave and Koch) pointed out that the Treaty of Rome was only applicable when the sports issue concerned, was an economic activity. This suggests that sports activities were not necessarily covered by EU law. The European Commission intervened very little in sport in this period; it only regulated the sale of package tours linked to the purchase of tickets for the 1990 FIFA World Cup in Italy. 16 The Council adopted a European Sports Charter in 1976, which was revised twice. The first time was in 1992 and the second in The European Sports Charter, however, only contains vague aspirations about co-operative measures. 17 In Article 1, for example, it declared that every individual shall have the right to participate in sport. It is, however, not mentioned how they want to bring this into practice. Overall, the EU regulated on a minimum basis with little desire to expand their powers into the field of sport. 13 R. Blanpain, The future of sports in Europe, in: R. Blanpain, M. Colucci & F. Hendrickx (red.), The future of sports law in the European Union. Beyond the EU reform Treaty and the White Paper, Alphen aan de Rijn: Kluwer law International 2008, p K. Foster, Can sport be regulated by Europe. An analysis of alternative models, in: A. Caiger & S. Gardiner (red.), Professional sport in the EU. Regulation and re-regulation, Den Haag: T.M.C. Asser Press 2000, p K. Foster, Can sport be regulated by Europe. An analysis of alternative models, in: A. Caiger & S. Gardiner (red.), Professional sport in the EU. Regulation and re-regulation, Den Haag: T.M.C. Asser Press 2000, p K. Foster, Can sport be regulated by Europe. An analysis of alternative models, in: A. Caiger & S. Gardiner (red.), Professional sport in the EU. Regulation and re-regulation, Den Haag: T.M.C. Asser Press 2000, p Council of Europe, European Sports Charter adopted by the Council on 24th September 1976 and revised in 1992 and 2001, nternet=9999cc&backcolorintranet=ffbb55&backcolorlogged=ffac75. 8

9 2.2 Freedom of movement This attitude towards regulating sport can be explained by EU s focus in this first period. At the time of the signing of the EEC Treaty in 1957, the EU had to handle more significant issues than the regulation of sport. 18 It wanted to create a single market and, therefore, the EU was focussed on achieving economic goals and competition law. To ensure that these goals were accomplished, the EEC-Treaty provided four fundamental freedoms, known as the EU s four freedoms. One of these four freedoms is the free movement of workers, nowadays codified in Article 45 TFEU (ex Arts. 39 EC and 48 EEC). This article entails the abolition of any discrimination based on nationality between workers of the member states as regards employment. Article 45 TFEU does not only forbid direct discrimination on nationality, but also indirect discrimination and obstacles impeding the exercise of the right to free movement. Direct discrimination consists of a rule that explicitly makes nationality the relevant basis for the rule. Indirect discrimination means that it is a rule which disadvantages foreign nationals, but falls short of direct discrimination. Any rule that can be shown to likely have a greater impact on foreign nationals can constitute indirect discrimination e.g. nationality quotas. 19 The only grounds for exceptions in cases of direct discrimination are those listed in article 45(3), public policy, public security and public health. Indirectly discriminatory measures must, in order to be compatible with EU law, be necessary and proportionate to the achievement of their legitimate objective. 20 In football, regulations including nationality quotas can be found directly or indirectly discriminating. Provisions such as transfer rules which, even if applied without regard to nationality, restrict the freedom of movement of sportspeople who wish to pursue their activity in another Member State constitute obstacles to free movement. 21 Such obstacles can be accepted if they pursue a legitimate aim compatible with the Treaty and is justified by overriding reasons in the public interest. Even if that were so, application of this obstacle has achieve the objective in question and not go beyond what is necessary for that purpose. Third country nationals, who are covered under Association or Cooperation Agreements with the EU, enjoy the same anti-discrimination protection as EU citizens, but only when they are legally employed in the territory of a Member State. However, national sport associations did not always adjust their 18 D. Schmidt, The effects of the Bosman-case on the professional football leagues with special regard to the topfive leagues (bachelor thesis University of Twente), 2007, p J.J. McDermott, Direct v. indirect discrimination in European football. The legal differences between UEFA s Homegrown player rule and FIFA s 6+5 proposal, Texas Review of Entertainment and Sports Law , p M. Colucci, Freedom of Movement, (Unpublished chapter), p M. Colucci, Freedom of Movement, (Unpublished chapter), p

10 regulations accordingly. This point will be later on in this thesis discussed in detail as it was core of a dispute. Although, 55 years have passed since the freedom of movement has been created, the content stayed the same in all these years. Only the numbering of this article has often been changed. Sport, and in particular football, has collided with the freedom of movement in numerous cases. One can even say it has been the area of EU law which has had the most substantial impact on sport. It is this article, which draws sport eventually into the legal framework of the EU, as it was an article that often collided with sport regulations Walrave and Koch The tension between the freedom of movement and sport is illustrated by the case Walrave and Koch, also known as Walrave v. Association Union Cycliste Internationale. It was the first case in which the ECJ had to rule on a sport issue. It had to establish whether and to what extent sporting activities are subject to EU law, in particular 45 TFEU. 23 Walrave and Koch were two professional athletes in the sport of motor-paced racing, which stated that the rules of the sport they were practicing were infringing Article 48 EEC (Art. 45 TFEU). 24 Motorpaced racing is performed by teams of two persons, the biker and the pacemaker. The role of the pacemaker is to drive on a motorbike in front of the biker and adjust the speed to the need of the latter. 25 The rules required that both the pacemaker and the biker had the same nationality. Walrave and Koch were exceptional pacemakers, but they complained that they could not find partners from their nations that were able to do the biking part. They argued that this sport provided there income and therefore they should be free to work with whomever they want. They took the case to the ECJ, which outlawed the rule prohibiting a working co-operation between partners of different nations. In 1974, the ECJ ruled that when athletes activities have the character of gainful employment or are a remunerated service, they come within the scope of Articles 48 to 51 EEC (currently Articles 45 to 48 TFEU). 26 The Court continued by stating that the practice of sport is subject to EU law only in so far as it constitutes an economic activity within the meaning of art 2 of 22 R. Parrish, Football s place in the single European market, Soccer and Society 2002, p M. Colucci, Freedom of Movement, (Unpublished chapter), p D. Schmidt, The effects of the Bosman-case on the professional football leagues with special regard to the topfive leagues (bachelor thesis University of Twente), 2007, p D. Schmidt, The effects of the Bosman-case on the professional football leagues with special regard to the topfive leagues (bachelor thesis University of Twente), 2007, p ECJ 12 December 1974, case 36/74 Walrave & Koch v. Association Union Cycliste Internationale, [1974] ECR 1405, paragraph 5. 10

11 the Treaty. 27 Exemptions are acceptable to the extent that they are based on the particular nature and context of the relevant activities. 28 Activities which are of sporting interest only, and therefore are not of an economic nature, are not subject to EU law. 29 Such activities are, for example, the selection of athletes for a national team, the need to limit a number of participants in a competition, and the setting of deadlines for transfers of players in team sport. 30 The case of Walrave and Koch was withdrawn at the last minute and the ECJ was not able to enforce a final judgement. 31 Luckily for Walrave and Koch the rules were changed, and from that point on they were able to choose the biker they wanted without having to take into account the nationality. Even though the case was withdrawn, it still had a big impact in Europe as this partial ruling illustrates that sport might equate to an economic enterprise that falls under the umbrella of the EU legal framework. 32 Furthermore, the judgement made clear that rules on the formation of sports teams can be considered as purely sporting rules and, therefore, not subject to the legal framework of the EU. It suggests that sport has some peculiarities and that pure sporting rules could be subject to a sporting exception. 33 The precise scope of this sporting exception was not, however, made clear, and so the Court left open the task to define the exact borders of this exception. On a case-by-case basis the ECJ tries to identify purely sporting rules, which are not subject to the EU legal framework. The importance of Walrave and Koch is that it is the first case in history where the European Court of Justice decided on a sports matter. 34 Hereafter, the social dialogue between the EU and sports organisations intensified. For example, the EU and UEFA began their dialogue in 1978 which culminated in the 1991 gentleman s agreement. 35 This document is only one 27 ECJ 12 December 1974, case 36/74 Walrave & Koch v. Association Union Cycliste Internationale, [1974] ECR 1405, paragraph D.G. Dmitrakopoulos, More than a market. The regulation of sport in the European Union, Government and Opposition 2006, p ECJ 12 December 1974, case 36/74 Walrave & Koch v. Association Union Cycliste Internationale, [1974} ECR 1405, paragraph D.D. Orlando, 6+5 = Discrimination? Why FIFA s proposed quota rule doesn t add up, Penn State Law Review , p D. Schmidt, The effects of the Bosman-case on the professional football leagues with special regard to the topfive leagues (bachelor thesis University of Twente), 2007, p J.J. McDermott, Direct v. indirect discrimination in European football. The legal differences between UEFA s Homegrown player rule and FIFA s 6+5 proposal, Texas Review of Entertainment and Sports Law , p A. Vermeersch, All s fair in sport and competition. The application of EC competition rules to sport, Journal of Contemporary European Research 2007, p J.J. McDermott, Direct v. indirect discrimination in European football. The legal differences between UEFA s Homegrown player rule and FIFA s 6+5 proposal, Texas Review of Entertainment and Sports Law , p R. Parrish, Reconciling conflicting approaches to sport in the European Union, in: A. Caiger & S. Gardiner (red.), Professional sport in the EU. Regulation and re-regulation, Den Haag: T.M.C. Asser Press 2000, p

12 page long and introduced the 3+2 rule. This rule requires national associations to limit the number of foreign players on a club during match to three. 36 The gentlemen s agreement contains also some guidelines on transfer compensation. Although it is a non-binding document between the European Commission and the UEFA, Bosman challenged it before the Court. This part of the Bosman case will be discussed in chapter 2. The gentlemen s agreement was made and framed the position of the EU at a time when sport was barely practised as a significant economic activity, compared to the current economic relevance and practice. The rapid commercialisation of sport and the ruling in Bosman altered the EU s position. The Bosman case also marks the end of the first period. This case had different aspects, in this part the focus will be on the matter concerning the free movement of workers. This is another case illustrating how the freedom of movement article drove sport into the legal framework of the EU. Later on in this paper, the second aspect of the Bosman case will be discussed, which concerns the successful challenge of the 3+2 rule by Bosman. 2.4 The Bosman case The full name of the case is Union Royale Belge des Sociétés de Football Association ASBL v. Jean-Marc Bosman and was brought before the ECJ in the year Jean-Marc Bosman was a player at the Belgian football club RC Liège. His contract at Liège expired in June 1990 so he entered into an agreement with the French football club Dunkerque, to play for them after his contract ended in Liège. However, the transfer did not take effect because the Belgian football association, at the request of RC Liège, did not issue the mandatory transfer certificate necessary to complete the move. The result was that Bosman could not make his move to Dunkerque even though his contract expired in June In addition, the Belgian club suspended Bosman, thereby preventing him from playing for the entire season. Bosman took the Belgian club to the Belgian court, which subsequently asked the ECJ to interpret Article 48 of the Treaty of Rome (Article 45 TFEU) in relation to the regulations governing the transfer of professional footballers. The ECJ ruled that FIFA regulations on players transfers were in breach of Article 48 EEC, as they prevented players from joining another club even if their contracts had expired. The judgement in the Bosman case marks the start of the second phase in which the EU got more involved in sport by introducing and referring several times to the social importance of 36 C. Lembo, FIFA transfer regulations and UEFA player eligibility: Major changes in European football and the negative effect on minors, Emory International Law Review 2011, p

13 sport. The Bosman case was a landmark ruling and had several effects in the world of football as players whose contracts ended at a club, could now make a free transfer to a new club. The case reaffirmed once more that sports related matters could fall under the European legal framework. Also on the side of football organisations, the judgement had its impact. After Bosman, the FIFA was forced to draft a new transfer system which was given informal support by the European Commission in The main adjustment of the new transfer system concern a limitation of only one move per season in two designated transfer windows, a between seasons and a mid season, to replace injured players or for technical reasons. The free transfer at the end of a season after the contract time has terminated, following Bosman, has also been incorporated into the 2001 transfer system. 38 Although the FIFA accepted the decision of Bosman, the first reactions were not very positive. They stated that this decision was taken by people that do not know anything about football. 39 They even accused the EU of trying to destroy club football. 40 Critics saw in this ruling the destruction of football. They argued that the ruling would lead to an increase in salaries for players, since clubs could offer in salary what they no longer had to put into the transfer fee and it would remove any incentive to invest in the development of young players. 41 Although there was a fear for the huge consequences this case could have, 17 years later it can be concluded that this was a little exaggerated. That players could now make a free transfer after their professional contract expired, off course, had its influence. But instead of a rise in the salary of transfer free players, the judgement has led to a dramatic rise in the transfer fees of those players to whom a fee can still be attached, and in the salaries of star players. 42 Furthermore, nothing seems to indicate that the Bosman ruling has had a negative impact on the development of young players. Traditionally, smaller clubs are specialised in training young players as their financial survival depends on the transfer fees they receive for these players when they are sold to bigger clubs. After the Bosman judgment, one expected that 37 B. Garcia, The 2001 Informal Agreement on the International Transfer System, European Sports law and Policy Bulletin 2011, p ECJ 15 December 1995, case 415/93, Bosman, [1995] ECR I-4921, paragraph Gerhard Aigner, then UEFA General Secretary quoted in El País, La UE tomará los cuartos de final como prueba en la sentencia Bosman, 19 January B. Garcia, UEFA and the European Union. From confrontation to co-operation, Journal of Contemporary European Research 2007, p O. Croci, Taking the field. The EU and the governance of European football, In I. Tömmel & A. Verdun (red.), Innovative governance in the European Union: The politics of multilevel policymaking, Boulder: Lynne Rienner 2009, p O. Croci, Taking the field. The EU and the governance of European football, In I. Tömmel & A. Verdun (red.), Innovative governance in the European Union: The politics of multilevel policymaking, Boulder: Lynne Rienner 2009, p

14 smaller clubs would stop investing in youth development if bigger clubs could cherry-pick their crop later without having to pay a transfer fee. This, however, did not happen. Though, when there are debates on these topics, in a negative context, the Bosman ruling will undoubtedly be an easy target Period The case of Jean-Marc Bosman made visible the tensions between the UEFA/FIFA regulations and the European legal framework regarding sport that was subsequently given a place on the European institutions agenda. For the first time Europe began to take the concept and industry of sport serious by creating a Declaration on Sport and eventually even a White Paper on Sport. 44 In this second period, the ECJ, was given a chance to define purely sporting rules but unfortunately its judgement brought only more confusion. This period ended when the Lisbon Treaty came into force, which introduced an article on sport, and made any intervention of the EU in sport legally enforceable. 2.6 Declaration on Sport 1997 and 2000 The second period had already begun to develop during the end of the first period. Throughout the 1990s, the European Commission received a significant number of complaints regarding the transfer system established by FIFA. 45 At the same time the EU was seeking to give the socio-cultural and integrationist qualities of sport a higher priority. 46 This was done by drafting a Declaration on Sport annexed to the Treaty of Amsterdam, signed in This Treaty launched the second regulatory environment in which sport has operated. 47 What made this declaration special is that for the first time since the establishment of the EU, sport was mentioned in a document related to an EU Treaty as it is annexed to the Amsterdam Treaty. It emphasizes the social significance of sport, especially its capacity to bring people of different nationalities together. The EU institutions are therefore called on to listen to sporting 43 O. Croci, Taking the field. The EU and the governance of European football, In I. Tömmel & A. Verdun (red.), Innovative governance in the European Union: The politics of multilevel policymaking, Boulder: Lynne Rienner 2009, p Treaty of Nice: Declaration on Sport, December 2010, And European Commission, Commission of the European Communities White Paper on Sport, 11 July 2007 (COM(2007) 391), 45 D.G. Dmitrakopoulos, More than a market. The regulation of sport in the European Union, Government and Opposition 2006, p R. Parrish, The politics of sports regulation in the European Union, Journal of European Public Policy 2003, p R. Parrish, Football s place in the single European market, Soccer and Society 2002, p.2. 14

15 associations when important questions affecting sport are at stake. 48 Also, through this declaration Member States were able to give the EU institutions some political guidance on how sports regulations should develop. 49 Although this declaration had no legal force, it was a step forward in trying to introduce sport in the legal framework of the EU. The message the EU was trying to convene by drafting this declaration was that the EU institutions were expected to take into account the social significance of sport when they deal with issues affecting sport. 50 The UEFA criticised the EU by pleading for a new, general protocol on sport after the introduction of the 1997 Declaration on Sport. They criticised its limited scope and legal nature. This criticism had no effect, because the Helsinki Report on Sport in furthered this social role of sport approach together with a limited scope. 52 The Helsinki Report on Sport was a Report from the European Commission to the European Council with a view to safeguarding current sports structures and maintaining the social function of sport within the EU framework. It tried to reconcile the preservation of sporting rules with the legal framework of the EU. 53 Three years later, in Nice, a new Declaration on Sport was adopted, which was based on the above-mentioned Helsinki Report on Sport. This declaration aimed at supporting the preservation and promotion of the social functions of sport and noted the specific characteristics of sport. Although the EU had recognized the important function of sport, the problems at the border of the framework of the EU and football organisations had not been addressed. Both the EU and the football organisations maintained their opposing views on how these problems should be faced. There have been some initiatives by Member States to set up an independent European Sport Review with a focus on European football, to investigate problems, faced by the EU and its Member States. 54 Others state that the overall aim of the review was, to produce a report, independent of the football authorities, but 48 R. Siekmann, Is sport special in EU law and policy, in: R. Blanpain, M. Colucci & F. Hendrickx (red.), The future of sports law in the European Union. Beyond the EU reform Treaty and the White Paper, Alphen aan de Rijn: Kluwer law International 2008, p R. Parrish, Football s place in the single European market, Soccer and Society 2002, p D.G. Dmitrakopoulos, More than a market. The regulation of sport in the European Union, Government and Opposition 2006, p European Commission, Report from the commission to the European council with a view to safeguarding current sports structures and maintaining the social function of sport within the Community framework, Brussels 12 December 1999: (COM(1999) 0644), 52 K. Foster, Can sport be regulated by Europe. An analysis of alternative models, in: A. Caiger & S. Gardiner (red.), Professional sport in the EU. Regulation and re-regulation, Den Haag: T.M.C. Asser Press 2000, p T. Gabris, Behaviour clauses in sports: Basic rights of sportsmen (master thesis Tilburg University), 2010, p J.L. Arnout, Indepedent Sport Review 2006, p. 9, 15

16 commissioned by UEFA, on how the European football authorities, EU institutions and Member States can best implement the Nice Declarations on European and national level. 55 The Nice Declaration, adopted by the European Council in 2000, set out a number of specific characteristics of sport that are considered to be of value and importance to the European society. 56 As mentioned earlier, this declaration was based on the so-called Helsinki Report on Sport (1999), which concerned the safeguarding of current sports structures and maintaining the social function of sport within the EU framework. 57 One very remarkable part in the declaration is where it states that although the EC Treaty contains no specific provisions on sport, the EU must nevertheless ensure that the initiatives taken by the national authorities or sporting organisations comply with EU law, including competition law, and respect in particular the principles of the internal market (the four freedoms). In other words, as long as sport constitutes an economic activity, it is subjected to the rules of the EU. The EU has to take into account the specific characteristics of sport when applying these rules. This could imply that in principle exemptions from EU law are possible. There are certain rules without which a club cannot exist or rules that are necessary for the organisation of the sport which are beyond competition law. 58 These rules could be exempted from applying EU law as long as they are objectively justified, non-discriminatory, necessary and proportionate. Just like the 1997 Declaration on Sport, the Nice Declaration is not legally binding and only offers indications on how to deal with certain issues. By introducing the Declaration on Sport in 1997 and 2000, the EU tries to intervene in the sports sector. Both declarations are important policy statements made by the Heads of States and governments of the EU Member States, as they form the European Council which adopts these documents. This way the EU tries to ensure that football stakeholders respect the freedom of movement and workers are not crossing any other border set by the EU. Interesting to observe is that the argument of the social significance of sport made by the Court has been codified by the EU in the Declarations on Sport. It looks like the declarations 55 B. Garcia, The independent sport review: Half full or half empty, Entertainment and Sports Law Journal 2007, p Treaty of Nice: Declaration on Sport, December 2010, 57 European Commission, Report from the commission to the European council with a view to safeguarding current sports structures and maintaining the social function of sport within the Community framework, Brussels 12 December 1999: (COM(1999) 0644), 58 M. Colucci, Sport in the EU Treaty: In the name of specificity and autonomy, in: R. Blanpain, M. Colucci & F. Hendrickx (red.), The future of sports law in the European Union. Beyond the EU reform Treaty and the White Paper, Alphen aan de Rijn: Kluwer law International 2008, p

17 on this point have codified the case law. The Court was not influenced by the declarations, but the declarations were dictated by the Court s case law. The social significance of sport was, for example, made by the Bosman case which took place before the entering into force of both declarations The Meca-Medina case Another way to illustrate the growing number of interventions of the EU in the second period, are the numerous judgements and decisions, which will be discussed in the following part. 60 The first noticeable case after both declarations were published is the Meca-Medina case in In this case the European Court of Justice recognized an exception applicable to rules that are inherent to a sport. 61 The Meca-Medina case offered the ECJ a good opportunity to further develop and describe the specific sporting rules that fall outside the EC Treaty and, in doing so, give sports governing bodies a better understanding of the kind of rules and practices they could apply without fearing a successful challenge under EU law. The ECJ decided in this case that even if a rule is purely of a sporting nature, and has nothing to do with an economic activity, this does not mean that the activity governed by that rule or the body which issues them are not governed by the EC-Treaty. The Court ruled that it is to be remembered that, having regard to the objectives of the EU, sport is subject to EU law in so far as it constitutes an economic activity within the meaning of Article 2 EC (Art. 2 TEU). 62 The Court, however, did not take the opportunity to provide a better clarification of the scope of specific sporting rules. Some authors argue that by not clarifying the scope of specific sporting rules the Court has opened a Pandora s box of potential legal situations in the field of sport that can be considered as violating EU law. 63 In Meca-Medina no explicit reference was made to the Declaration on Sport. A possible explanation offered by Colluci, is that in this case the Court rejected the traditional concept of the sporting exception. 64 If this analysis would be correct, the references to the Sport Declarations in the Court s previous sports jurisprudence are now part of history. This may be a rash conclusion, as it is a natural 59 ECJ 15 December 1995, case 415/93, Bosman, [1995] ECR I-4921, paragraph M. Whatelet, Sport governance and EU legal order. Present and future, The International Sports Law Journal /4, p J.J. McDermott, Direct v. indirect discrimination in European football. The legal differences between UEFA s Homegrown player rule and FIFA s 6+5 proposal, Texas Review of Entertainment and Sports Law , p CFI 30 September 2004, case T-313/02, Meca-Medina v. Commission, [2004] ECR II-3291, paragraph 42; ECJ 18 July 2006, case C-519/04 Meca-Medina v. Commission, [2006] ECR I-6991, paragraph M. Colucci, Freedom of Movement, (Unpublished chapter), p R. Siekmann, Is sport special in EU law and policy, in: R. Blanpain, M. Colucci & F. Hendrickx (red.), The future of sports law in the European Union. Beyond the EU reform Treaty and the White Paper, Alphen aan de Rijn: Kluwer law International 2008, p

18 occurring process that the Court redefines the concept of sporting exception. This does, however, not necessarily exclude future references to the traditional concept of the sporting exception. The Meca-Medina judgement can be seen as very interesting because the Court repeats its position established in Walrave and Koch. 65 But the Court also holds that, it is apparent that the mere fact that a rule is purely sporting in nature does not have the effect of removing from the scope of the Treaty the person engaging in the activity governed by that rule or the body which has laid it down. 66 This judgement makes it clear that even if a rule has a purely sporting interest, its operation can still be held subject to the EU Treaty. The traditional concept of sporting exception, in which EU law only applies to economic activities and not to rules of pure sporting interest, has faded away. This judgement leaves a lot of room for interpretation about the Court s view on sporting matters and as has been mentioned earlier, the Court did not clearly define the scope of specific sporting rules. Though, this case takes another step in defining and denominating the special character of sport and thereby creating a doctrine of specificity of sport. 2.8 The White Paper on Sport On 11 July 2007 the EU adopted a White Paper on Sport. 67 It was the result of numerous consultations with sport stakeholders and Member States on issues of common interest. This paper was a big step towards a comprehensive European sports policy. 68 It emphasizes the societal and health-enhancing role of sport. Remarkable is that the White Paper contains an impact assessment that can be the basis on which the Commission would list the necessary conditions for the EU to take action in relation to sport. Other elements that can be found in the document are the reasons for drawing up the White Paper, the key problems sport is facing these days, and last but not least the present principle objectives. 69 The first objective that can be found in the White Paper is to make the sport world more visible in the EU policy making, 65 F. Hendrickx, Future directions of EU sports law, in: R. Blanpain, M. Colucci & F. Hendrickx (red.), The future of sports law in the European Union. Beyond the EU reform Treaty and the White Paper, Alphen aan de Rijn: Kluwer law International 2008, p CFI 30 September 2004, case T-313/02, Meca-Medina v. Commission, [2004] ECR II-3291; ECJ 18 July 2006, case C-519/04 Meca-Medina v. Commission, [2006] ECR I-6991, paragraph European Commission, Commission of the European Communities White Paper on Sport, 11 July 2007 (COM(2007) 391), 68 P.V. Hernandez, The European Commission s White Paper on sport, in: R. Blanpain, M. Colucci & F. Hendrickx (red.), The future of sports law in the European Union. Beyond the EU reform Treaty and the White Paper, Alphen aan de Rijn: Kluwer law International 2008, p M. Colucci, Sport in the EU Treaty: In the name of specificity and autonomy, in: R. Blanpain, M. Colucci & F. Hendrickx (red.), The future of sports law in the European Union. Beyond the EU reform Treaty and the White Paper, Alphen aan de Rijn: Kluwer law International 2008, p

19 by illustrating the social and economic relevance of sport. A second objective is to better incorporate sport into existing and planned EU programmes and actions. Another objective is to investigate the possibility of financial support for sports-related projects (within EU financial instruments). Finally the Commission asks the Member States to intensify their cooperation on sport by establishing a common programme, common priorities, and transparent information for all European sports ministers. The European Commission also reaches out to the parties in the world of sport by encouraging them to create a social dialogue committee in the domain of sport. This document voices the opinion of the European Commission that sport activities must comply with both fundamental rights guaranteed by the Treaty as well as EU competition laws. The European Commission, for the very first time, addresses and recognizes the specificity of sport by stating that according to established ECJ case law, the specificity of sport will continue to be recognised, but it should not be interpreted in such a way that justifies a general derogation to the enforcement of EU law. 70 But according to this, it cannot be said that a purely sporting rule falls per definition outside the scope of the Treaty. Therefore, the FIFA and a lot of other sports organisations labelled it a missed opportunity from the day it was published. This reaction could be taken as a consequence of the tense relation between the two. The impact of the White Paper is that for the first time the European Commission addresses in depth the problems facing European sport. It was seen as an instrument to pave the way for the implementation of a future Treaty provision on sport. The Paper remained the basis for the European Commission s involvement in the sports sector until the Lisbon Treaty was ratified. As around up of this second period, it can be concluded that due to the fast development of sport and the commercialization that is inherent too it, it was inescapable that European law reached a bigger impact in the sport. First, with the Declarations on Sport in 1997 and 2000, and later with the White Paper on Sport. These documents recognise the social importance of sport and develop the dialogue with sports organisations. Furthermore, sports organisations should keep in mind that actions and practices performed under their legislation are subject to European Law, as long as it constitutes an economic activity. Although the case law and the Commission recognised this sporting exception, it does not mean that sport can be fully 70 European Commission, Commission of the European Communities White Paper on Sport, 11 July 2007 (COM(2007) 391), 19