The Globe At Their Feet: FIFA's New Employment Rules – II

Abstract

In December 1998 FIFA faced a crisis. The European Commission objected to football's transfer system (payment of fees for players who change clubs during the life of their contract), seeking its abolition. Three years earlier, in Bosman, the European Court of Justice found against the compensation system (payment of fees for players who change clubs after the expiry of their contract). FIFA, together with UEFA, lobbied the European Commission and leading politicians, to turn the Commission away from this position. FIFA and UEFA were not only successful in securing the maintenance of the transfer system, but also achieved resurrection of compensation fees for players less than 23. This study provides an account of the major machinations of these events and a critical commentary on the rules developed. The study maintains that the rules are inconsistent with the European Treaty, confused and contradictory and will be overly bureaucratic. FIFA's objects could be more easily achieved by the introduction of a simple administrative rule; placing an upper limit on the size of playing squads of clubs in leading, or top-flight, divisions. Part I, which appeared in the Spring 2004 issue of this journal, examined the economics of professional team sports, the Bosman case and the interactions of various parties in constructing a new set of rules. Part II describes the new rules and provides a critical commentary.

Notes

 [1] Principles for amendment of FIFA rules; FIFA Regulations the Status and Transfer; Regulations governing the application of the Regulations; and FIFA Circular No.769, Revised Regulations. These documents are available on FIFA's website – http://www.fifa.com.

 [2] Regulations, article 3.

 [3] Regulations, article 42.1(b)i.

 [4] FIFA 1977 Regulations.

 [5] Regulations, article 2.

 [6] Regulations, article 4.2.

 [7] Regulations, article 6.

 [8] Lehtonen.

 [9] Regulations, article 5.

[10] UEFA Media Release, 4 Dec. 2001.

[11] Regulations, article 12.

[12] Application Regulations, article 3.

[13] Regulations, article 13.

[14] Regulations, articles 14 and 15.

[15] Regulations, article 19.

[16] Application Regulations, article 6.2.

[17] Application Regulations, articles 6.4 and 6.5.

[18] Application Regulations, article 5.4(a).

[19] Application Regulations, article 7.3.

[20] Application Regulations, article 7.4.

[21] Interpretation Document, p.7.

[22] See Metropolitan Exhibition v Ward; Metropolitan Exhibition v Ewing ; Radovich; Boston Professional Hockey Association; Philadelphia World Hockey Club ; Eastham; Greig; Buckley; Foschini; Hughes; McCarthy; Carfino; Adamson v New South Wales Rugby League; Blackler and Kemp. Also see Media, Entertainment and Arts Alliance .

[23] The Interpretation Document, p.9, states, ‘It is the responsibility of the new club to calculate the amount of the compensation for training and education and the way in which it should be distributed to the different clubs where the players played previously’. Self-assessment of payments that have to be made to others would lead to understatement.

[24] Application Regulations, article 6.3. Also see Principles, Annex, B. Calculation, clause 1.

[25] Application Regulations, articles 7 and 8.

[26] Application Regulations, article 5.6.

[27] Principles, Annex, B. Calculation, clause 2.

[28] Application Regulations, article 7.2.

[29] Application Regulations, article 7.5.

[30] Regulations, article 18.

[31] Application Regulations, article 12.

[32] European Report , 17 Jan. 2001, 470.

[33] Regulations, articles 21 to 24.

[34] Regulations, article 25.

[35] Application Regulations, articles 15.2 and 15.3.

[36] Regulations, article 42.

[37] The lawyer as an Ideal Type.

[38] Department of Education and Science, Report of the Committee on Football , 64.

[39] Footballers face the ever-present risk of injury, which can adversely impact on form or end careers. While occupational health and safety impact on all professions they are of greater concern for footballers/sport than other areas – such as lawyers.

[40] See National Basketball Collective Bargaining Agreement, article xi; NFL Collective Bargaining Agreement, articles xix and xx; and National Hockey League Collective Bargaining Agreement, article 10.

[41] Article 86 (revised 82) states:

• Any abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market insofar as it may affect trade between Member States.

Such abuse may, in particular, consist in:

1. directly or indirectly imposing unfair purchasing or selling prices or other unfair trading conditions;

2. limiting production, markets or technical developments to the prejudice of consumers;

3. applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;

4. making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage have no connection with the subject of such contracts.

[42] Rothmans Football Yearbook 2001–2002, 493–5.

[43] Baseball Collective Bargaining Agreement, article XV.E; Basketball Collective Bargaining Agreement, article xxix; NFL Agreement, article xxxiii; Hockey Collective Bargaining Agreement, article 16.4; Australian Football Collective Bargaining Agreement, clause 27; Australian Cricket Memorandum of Understanding, article 6.2; and Australian Rugby Collective Bargaining Agreement, clause 8.

[44] Simmons, ‘Making Sense of the FIFA/UEFA Proposals to Reform the Football Transfer System’; and Moorhouse, ‘The Economic Effects of the Traditional Transfer System in European Professional Football’.

[45] Bosman, Opinion of Advocate General Lenz, paragraph 232.

[46] Johnson, Minor League Baseball and Local Economic Development , pp. 9-20.

[47] Berry and Gould, ‘A Long Deep Drive to Collective Bargaining: Of Players, Owners, Brawls and Strikes’; Opie and Smith, ‘The Withering of Individualism: Professional Team Sports and Employment Law’; and Dabscheck, ‘Sport, Human Rights and Industrial Relations’.

[48] Bosman, Opinion of Advocate General Lenz, paragraph 148.

[49] The two conventions are reproduced in Brownlie (ed.), Basic Documents on Human Rights , 52–63. For sports cases which have considered the ‘servile’ nature of employment rules see Flood; X v The Netherlands; Media, Entertainment and Arts Alliance. Also see American League Baseball Club of Chicago v Chase , and Adamson New South Wales Rugby League .