THE PRINCIPLE OF FREE
MOVEMENT OF PLAYERS AND
ITS IMPACT ON THE FIFA
REGULATIONS
MICHELE COLUCCI
www.colucci.eu
E-mail: [email protected]
KULEUVEN,
CAS-LEUVEN 2011
1
FREE MOVEMENT OF WORKERS
Artt.45 TFEU Workers have the right to:
– accept offers of employment actually made;
– move freely within the territory of Member
States for this purpose;
– to stay in a Member State for the purpose of
employment;
– to remain in the territory of a Member State
after having been employed in that State.
2
CASE LAW OF ECJ: evolution
Definition of «worker»:
– A PERSON PERFORMS SERVICES OF SOME
ECONOMIC VALUE FOR AND UNDER THE
DIRECTION OF ANOTHER PERSON IN RETURN
FOR WHICH HE RECEIVES REMUNERATION
(Lawrie-Blum, C-66/85).
«Community meaning»(Unger, C-75/63).
Fundamental Principle: broad interpretation
(Levin, C-53/81).
Exceptions and derogations: strict interpretation
(Kempf,C-139/85).
3
EQUAL TREATMENT
BAN ON “DIRECT” DISCRIMINATIONS
Art. 18 TFEU on the basis of nationality
Art. 45 TFEU:…
– Access to employment
– Pay
– Employment conditions
Association agreement, Co-operation
agreement, and so on.
SPORT: Balog case, Simutenkov, case
4
« COVERT DISCRIMINATIONS »
NO « COVERT FORMS OF
DISCRIMINATION” which, by the
application of other criteria of
differentiation, lead in fact to the same
result . (cause 152/73 Sotgiu)
YES, only in case of « objective reasons »;
proportionality test!
5
THE UEFA HOMEGROWN
PLAYER RULE
THE UEFA HOMEGROWN PLAYER
RULE
Homegrown: player trained by a club for 3
years when he is between 15 and 21
years old
– 2006/2007
4 up to 25
– 2007/2008
6 up to 25
– 2008/2009
8 up to 25
No discrimination on the basis of nationality.
6
Reverse discrimination
“National law” v. “EU law”:
– Different scope
– different goals
EU Law does not apply to purely
internal matters.
7
The case law of the ECJ
“Sport is subject to Community law in so far as it
constitutes an economic activity within the
meaning of Article 2 of the Treaty” .
Walrave case, C-36/74.
Donà v. Montero case, C- 13/76(nationality
clause).
sports or economic activity?
– C-51/96 Deliège case”, C-176/96, Lethonen case,
Meca – Medina case(doping).
8
THE BOSMAN case
cause C -415/93
DAVID v. GOLIAH!
Sport= economic activity= the end of
transfer compensation
NO QUOTA!
Quid training ?
The new FIFA regulations on Status and
Transfer of Players
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FIFA regulations on Status and
Transfer of Players
The Gentlemen’s agreement (2001)
– The five principles:
free of movement,
protection of minors,
training compensation,
solidarity mechanism,
dispute resolution and arbitration system.
2001 FIFA Regulations
2004 – 2005 -2008 – 2010 FIFA
Regulations
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Contract
Maximum of 5 years
For under 18:maximum of 3 years
Mention to the name of the agent
It is not subject to a positive medical
examination and/or the granting of a work
permit
11
CONTRACTUAL STABILITY
Respect of contract
Terminating a contract for
– By mutual agreement
– Just Cause
– Sporting Just Cause
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ART. 17 of the FIFA Regulations
The following provisions apply if a contract is terminated without just
cause:
1. In all cases, the party in breach shall pay compensation.
Unless otherwise provided for in the contract,
compensation for the breach shall be calculated with
1. Due consideration for the law of the country concerned,
2. The specificity of sport, and
3. any other objective criteria.
These criteria shall include, in particular,
A. the remuneration and other benefits due to the player under the existing
contract and/or the new contract,
B. the time remaining on the existing contract up to a maximum of
five years,
C. the fees and expenses paid or incurred by the former club
(amortised over the term of the contract) and whether the contractual
breach falls within a protected period
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Sporting Sanctions
• Sporting sanctions
– Players: suspension of 4 months, but also 6
months in the case of aggravating
circumstances
– Clubs: ban to register new players for two
registration periods.
See MEXES and WEBSTER Cases before
DRC and CAS
14
Training Compensation
must be paid when:
– a player signs his first contract as a
professional,
– on each transfer of a professional until the
end of the season of his 23rd birthday.
15
TRAINING COMPENSATION
Clubs from Europe:
First category: 90.000 euros
Second category: 60.000 euros
Third category: 30.000
Fourth category: 10.000 euros
16
Solidarity Mechanism
If a professional is transferred before the
expiry of his contract, any club that has
contributed to his education and training
shall receive a proportion of the
compensation paid to his previous club
17
BERNARD
16 of March 2010
“A scheme providing for the payment of
compensation for training where a young player,
at the end of his training, signs a professional
contract with a club other than the one which
trained him can, in principle, be justified by the
objective of encouraging the recruitment and
training of young players. However, such a
scheme must be actually capable of attaining
that objective and be proportionate to it, taking
due account of the costs borne by the clubs
in training both future professional players
and those who will never play professionally
(para. 45).
18
Bosman versus Bernard
Sport in so far as economic
activity
Free movement of workers
Restrictions regardless of
nationality
Professional to professional
End of (prof.) contract
Sport in so far as economic
activity
Free movement of workers
Restrictions regardless of
nationality
Amateur to professional
End of (amateur)
contract/training
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19
Jurisdiction
Civil court for employment-related disputes
But FIFA for
– Disputes between clubs and players in relation to the
maintenance of contractual stability if there has been an ITC
Request
– Disputes related to Training Compensation (Art. 20) and
Solidarity Mechanism
– Employment-related disputes between a club and a player that
have an “international dimension”.
unless an independent national arbitration tribunal (fair proceedings
and equal representation of players and clubs)
20
Judicial Bodies
Players’ Status Committee
Dispute Resolution Chamber (now also a
single judge)
CAS
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