Inspired by a real-life case lodged before the European Court of Justice as a reference for a preliminary ruling by the Tribunal de commerce de Charleroi of France[1] in 2006, the 2006/07 case[2] for the European Law Moot Court Competition[3] was about examining the relation between international football regulations requiring the compulsory release of professional football players to play on the national teams and EU rules of free movement and competition. This article discusses the main points raised by the fictional case.
The fictional case involved two "Member States" of the European Union: San Stefano and Vittoria, and two football players: Kwame and Kofi Eko, brothers, both born in Ghana, as third country nationals. According to the case background, first Kwame (in 2000), than Kofi (in 2003) came to the EU to play in the team "A.C. Floriana" in San Stefano. Very soon after his arrival, Kofi Eko married a national of San Stefano and acquired the nationality of San Stefano with this.
In 2005, both brothers' initial contract expired. While Kofi signed a new contract with A.C Floriana for four additional years, Kwame Eko decided to move on to a team of Vittoria by the name of F.C. Tomalona. This decision caused some problems due to the General Regulations of the Vittoria Football Association, which, among others state that:
'Without prejudice to the exceptions laid down herein, in order to register as a professional and obtain a professional licence, a footballer must meet the general requirement of holding Vittorian nationality or the nationality of one of the countries of the European Union or the European Economic Area.'
and that
'Clubs entered for official professional competitions at national level shall be entitled to register foreign non-Community players, provided that these players fulfill the following conditions, established by the Vittoria F.A, the National Professional Football League and the Association of Footballers in Vittoria:
- They must receive an annual salary of minimum □ 500.000 net; and
- They must have played in at least 50% of the matches of the national team of their country during the last three seasons, barring injury.
Despite these rules, negotiations were successfully concluded between Kwame Eko and F.C. Tomalona. The initial problems Kwame had with his new team were further exacerbated when UEFA, at the start of the 2005/06 season, adopted a new 'homegrown rule', according to which clubs must play with at least six domestically trained players during official matches. A player can be qualified as domestically trained by a club when he has been at the club for three years between the age of 15 and 21, irrespective of his nationality. Minimum three of these domestic players must have received their training at the club itself; the other domestically trained players must have received their training at another club in the same EU Member State. As this rule severely limited his chances of playing at official matcher, Kwame Eko contested it first at the Vittoria Football Association, and after this turned down his application, before the Tribunal of First Instance in Tomalona.
Another problem arose when Kwame Eko was requested to play in the national team of Ghana, and had to be released by F.C. Tomalona according to the 2005 Regulations for the Status and Transfer of Players of FIFA, which state that clubs must release their players for international matches with their country. When Kwame was severely injured during the Africa Cup, causing him to miss many of his matches in F.C. Tomalona, the latter club sought some compensation from either FIFA or the Ghana Football Association, which both refused to give. In a reaction, F.C. Tomalona decided to commence proceedings before the Tribunal of First Instance in Tomalona against the compulsory release system.
The third case came to the Tribunal after it was lodged before the Dispute Resolution Chamber of FIFA and, on appeal, the Court of Arbitration for Sport. It concerned the actions of not Kwame, but Kofi Eko, who chose to join another club (F.C. Tomalona), while he had an unexpired contract with
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A.C. Floriana; his actions were not sanctioned by A.C. Floriana as that club had had a better offer for the player from a third club, Kowalski United. The Dispute Resolution Chamber and the Court of Arbitration for Sport equally held that the new contract with F.C. Tomalona was in breach of FIFA Regulations, and imposed a fine and a ban to register new players on F.C. Tomalona, and suspended Kofi Eko from playing for four months.
The Tribunal of First Instance of Tomalona decided to join the three separate, but parallel "proceedings" mentioned above. As the Tribunal was not completely certain as to whether Mr. Kwame Eko, Mr. Kofi Eko and F.C. Tomalona could rely upon EC law in order to succeed in their claims, it decided to stay the proceedings before it and refer the following questions to the European Court of Justice for a preliminary ruling.
a) Can an international sporting federation apply to a professional sportsman from Ghana a rule according to which clubs must field in league and cup matches a minimum number of domestically trained players, even though this rule applies irrespective of nationality?
b) Are the specific requirements imposed by the Vittoria F.A. to register certain professional football players compatible with the immigration policies relating to free of movement of persons in the EU?
The first, immediately apparent problem with the first question is its wording, more precisely, the fact that according to Art. 234 of the Treaty establishing the European Community, neither part of the first question falls in the jurisdiction of the European Court of Justice, as they concern the compliance of two rules made by sporting federations with Community law, in relation to which national courts have jurisdiction. Although there is some evidence to the contrary in the case-law of the European Court of Justice[4] in exceptional cases, the main cases prove the reasoning of the ECJ started in previous cases (van Gend en Loos[5], Costa v. ENEL[6]) expressly, that the Court has a right to extract from questions formulated by national courts the ones which are in its jurisdiction to decide.
In the case of the second part of the first question, where the Tribunal of First Instance of Tomalona inquires about the compatibility of Vittoria F.A.'s rules of registration with the immigration policies regulating free movement of persons in the Community, the defendant Vittoria F.A. could argue before the European Court of Justice that said rules of registration are not contested in, nor have any bearing on any of the proceedings before the Tomalona Tribunal. A decision on this question is therefore not necessary in order for the national court to make its judgment or judgments. In Scheer[7], however, the Court held that it had the right to provide the national court making the reference with all the information the latter needed to decide if a certain piece of national legislation was contrary to national law. Therefore, as the real meaning of the questions of the Tribunal of First Instance in Tomalona concerns the interpretation of the EC Treaty (Art. 12 and 39) and the Cotonou Agreement, answering the questions is, necessary for the national court to make an informed decision.
Another question which might arise in connection to the procedure is that the regulations in question (UEFA rules, Vittoria F.A. rules) are not in the public domain, but were made by private entities. In spite of this, as they are, in fact, "rules (...) aimed at collectively regulating gainful employment and services", have to be consistent with EC law and, as the ECJ determined in Walrave[8].
The line of reasoning of the applicants (Kwame and Kofi Eko and F.C. Tomalona) should be aimed at proving that based on the Court of Justice's case-law and the Cotonou Agreement[9], a sportsman holding the citizenship of Ghana is to be considered equal to Union citizens as regards the prohibition of discrimination on grounds of nationality. This would mean that Article 39 (ex 48) precludes the application of rules such as Vittoria F.A.'s regulations on the registration of third country nationals. The argument would then proceed to prove that the UEFA homegrown rule, although not directly discriminatory against nationals of other states, nevertheless constitutes indirect discrimination against such persons, therefore the principle established in Bosman[10]
Article 48 of the Treaty precludes the application of rules laid down by sporting associations under which, in matches in competitions which they organize, football clubs may field only a limited number of professional players who are nationals of other Member States.
applies to it and its application is likewise precluded by the Treaty.
The defendants, on the other hand, could rely on
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the fact that the European Court of Justice has stated consistently that Community law applies to sport, only in so far as it constitutes an economic activity[11], therefore acknowledging its dual nature. Various Community documents have stressed the special significance of sport in "forging identity and bringing people together"[12]. Keeping the connection of sportsmen and -women to their home country alive, and retaining the best sportsmen in their own countries' teams could therefore be a reason to have more restrictive, but non-discriminatory regulations of both national and international sports organizations.
As the Republic of Ghana is not a Member State of the European Community (EC), the EC law on the prohibition of discrimination based on nationality in connection to the free movement of workers, as defined in Art. 39 does not per se apply to persons holding the nationality of Ghana. However, a citizen of Ghana would fall into a special category, and cannot be considered to be a third country national in general.
The Republic of Ghana belongs to the group of states known as ACP countries. In 2003, the European Community and the ACP states signed the Cotonou Agreement. Article 13 paragraph (4) of the Cotonou Agreement states:
The treatment accorded by each Member State to workers of ACP countries legally employed in its territory, shall be free from any discrimination based on nationality, as regards working conditions, remuneration and dismissal, relative to its own nationals. Further in this regard, each ACP State shall accord comparable non-discriminatory treatment to workers who are nationals of a Member State.
The wording of and intentions behind this article are identical to those of the first indent of Article 37(1) of the Association Agreement with Poland[13], the first indent of Article 38(1) of the Association Agreement between the Communities and Slovakia[14] and, most importantly, Article 23(1) of the Agreement on partnership and cooperation establishing a partnership between the European Communities and their Member States, of one part, and the Russian Federation, of the other part. These three latter articles have been determined to have direct effect by the judgments Pokrzeptowicz-Meyer[15], Kolpak[16] and Simutenkov[17], respectively. These judgments established the right of third country nationals from countries having an association agreement with the Community to be free from discrimination on grounds of nationality in regard to working conditions, remuneration or dismissal, and to invoke this right before national courts[18]. As Article 13 paragraph (4) of the Cotonou Agreement has identical wording to the other three agreement articles, the ECJ would probably declare that it also has direct effect.
The specific requirements imposed by the Vittoria F.A. to register certain professional football players are:
Clubs entered for official professional competitions at national level shall be entitled to register foreign non-Community players, provided that these players fulfill the following conditions, established by the Vittoria F.A, the National Professional Football League and the Association of Footballers in Vittoria:
- They must receive an annual salary of minimum C 500.000 net; and
- They must have played in at least 50% of the matches of the national team of their country during the last three seasons, barring injury.
These requirements clearly affect third country nationals in a discriminatory way in regard to "working conditions, remuneration or dismissal", and make a distinction between nationals of Vittoria and nonCommunity nationals. According to the case-law of the European Court of Justice, such directly discriminatory measures can only be applied in the cases for which express derogations were provided in the Treaty[19]. As that is not the case here, the Vittoria F.A. regulations, when applied to a citizen of Ghana (or any ACP state) are not in conjunction with relevant Community provisions (Cotonou Agreement).
In opposition to this line of reasoning, the defendants could argue that the registration rules of Vittoria F.A. were drawn for the purposes of ensuring that from the pool of third country nationals wishing to play professionally in Vittoria, those of best abilities would be able to play in Vittoria's teams. The set minimum of remuneration also serves as a basic level of protection for employees. The registration rules, therefore, do not fall in the field of prohibitions for free movement of workers, but to the protection of Vittoria's cultural heritage, in the area governed by national law. Consequently, the Vittoria F.A. registration rules have no connection to Community law.
According to the "homegrown rule" established by UEFA and entered into force as from the start of the 2005/06 season:
Clubs must play with at least six domestically trained players during official matches. A player
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can be qualified as domestically trained by a club when he has been at the club for three years between the age of 15 and 21, irrespective of his nationality. Minimum three of these domestic players must have received their training at the club itself; the other domestically trained players must have received their training at another club in the same EU Member State.
Although it applies irrespective of nationality, a rule which requires a professional sportsman to spend three years between the ages of 15 and 21 at a certain club, or at clubs in a certain Member State is intrinsically easier to comply with for citizens of that Member State, as the majority of people are more likely to spend these early years of their career in their home country[20]. The rule therefore is liable to affect foreign players - including third country nationals - more than local ones. Therefore, this rule constitutes indirect discrimination[21] on grounds of nationality (one which breaches the Community rights of Member State citizens as well as those of certain third country nationals), and is precluded from application by Community law.
As established above, discrimination based on nationality against a sportsman from Ghana is not in conjunction with EC law. As the European Court of Justice consistently held that indirect discrimination which has the same effect as directly discriminatory measures is equally a breach of Community law, the UEFA homegrown rule cannot be applied to a citizen of Ghana, based on the case-law of the European Court of Justice (Bosman, Kolpak, Simutenkov).
While the applicants would conclude their reasoning with this induction, the defendants could try to bring it into question, by arguing that the rule requiring a connection to a certain club or other clubs in a certain country in the case of six players fielded in a match serves to maintain a sufficient level of identification with the club or state while building no obstacles in the way of free movement of workers or, more importantly, being discriminatory in nature. This can be supported by the following.
The length of professional life of sportsmen means that their training period - and the period of their mobility - starts earlier than in other professions. Consequentially, fulfilling a requirement of three years of belonging to a club between the ages of 15 and 21 is not necessarily easier fulfilled by citizens of the country in which the club operates. Taking into consideration the fact that only six of eleven fielded players have to fulfil this requirement, the obstacles created are not disproportional to the aim of ensuring stability of a team and the identification of players with and loyalty to teams and leagues as opposed to following only economic benefits.
It should also be noted that the rule is consciously non-discriminatory in nature: it applies regardless of citizenship, therefore affecting the citizens of the club's state as well as other nationals. In this, the principle established by the Court of Justice in the Keck[22] judgment is satisfied.
In a further case of Gebhard[23], the Court of Justice established four conditions, by the fulfilment of which rules that "are liable to hinder or make less attractive the exercise of a fundamental freedom guaranteed by the Treaty" can nevertheless be adopted. These requirements are application in a non-discriminatory manner; justification by imperative requirements in the general interest; suitability for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain it. The UEFA rules apply regardless of nationality: they are not discriminatory. As recognised by several documents issued by European institutions[24], sport and its power of building identity are a point of general interest: the UEFA rules merely attempt to prevent the ruthless application of business rules in this area. Clubs operating in a certain state are responsible for training players who can participate in the national team, this duty is another legitimate national interest to be protected. The homegrown rule requires a certain attachment to the football club or its home country on behalf of certain players, while by no means preventing "foreign" players being fielded, thus being adequate and proportional. As the Gebhard conditions are also fulfilled by the UEFA rule, it cannot be considered contrary to Community law.
When interpreting the law of the European Community as it applies to the case, it should be noted that either direct or indirect discrimination against third country nationals who wish to pursue professional careers in the Member States, and therefore become permanently settled there is against not only various Community international (Association and/or Cooperation) agreements, but internal Community legislation as well. The Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents[25] establishes - without prejudice to rights stemming from international agreement - the status of a long term resident third country national. Once the requirements (including 5 years of residence) have been satisfied, the third country national has a right to apply for this status, which, in turn, gives him/her various rights comparable to the Member State's own citizens, and the right of residence in other Member States. This directive indicates the
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policy of the Community of recognising and rewarding long term residence and professional attachment to Member States and/or organisations operating in Member States of third country nationals. Discrimination against them is, therefore, not permissible.
Also noteworthy, and an argument against any form of discrimination of third country nationals, is the role of sport "as a means of promoting greater involvement of immigrants, for example, in the life of society", of combating racism and intolerance, as recognised by the document "The European Model of Sport"[26].
Are Articles 39,49,81 and 82 EC to be interpreted as precluding international sporting associations from including in their regulations provisions imposing upon clubs to compulsory release their players for matches of the representative national teams for which they are eligible to play, without providing for adequate compensation arrangements?
To suggest a desirable answer to this question, the applicants should clear up whether a professional football player can be regarded as an average employee in the scope of the community law. Fortunately the European Court of Justice has imposing leading cases to prove that sportsmen must be regarded as workers and they cannot be taken out from under the effect of Community law. As the Court declared in Walrave, the EC Treaty concerns all activity which is honoured with some kind of reward[27]. It is needless to prove that professional footballers are paid by clubs where they play.
The question of whether the prohibitions of Article 39 can be applied to sport associations or only to Member States' authorities is also very important: this question has been answered by the ECJ before. The Court stated in several cases that in this connection the relevant point is only the existence of labour relation, and it is declared in Bosman, paragraph 82, that Article 39 is not only to be applied to the action of public authorities but extends also to rules of any other nature aimed at regulating gainful employment in a collective manner. Paragraph 83 states that free movement for persons and free provision of services would be compromised if the abolition of state barriers could be neutralized by obstacles resulting from the exercise of their legal autonomy by associations or organizations not governed by public law[28].
In the case 13/76 Gaetano Dona v Mario Man-tero it is also declared that professional matches are reckoned as an economic activity[29]. This is also an important declaration of ECJ, as from this time, clubs couldn't have rely anymore on their independency and the special circumstances which might have taken them out the provisions of Article 39.
It might comes up that the national matches which are held with the professional footballers belonging to different clubs in the world cannot be regarded as economic activities in the scope of the effect of the community law. In Bosman, in paragraph 76, the Court declared that the provisions of Community law concerning freedom of movement of persons and of provision of services do not preclude rules or practices justified on non-economic grounds which relate to the particular nature and context of certain matches. A restriction on the scope of the provisions in question must remain limited to its proper objective. It cannot, therefore, be relied upon to exclude this kind of sporting activity from the effect of the Treaty. Later, in Meca-Medina[30], the ECJ also declared that a rule being 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.
Taking, on the other hand, the defendants' view a professional football player can be regarded as a worker in the scope of free movement of workers too. Having regard to the objectives of the Community, sport is subject to Community law in so far as it constitutes an economic activity within the meaning of Article 2 of the Treaty, as in the case of the activities of professional or semi-professional footballers, where they are in gainful employment or provide a remunerated service.[31] In this case it is no doubt about Kofi and Kwame Eko having a labour relation with their clubs. But the aspect of the defendants in this case is that it needs to be cleared that matches between representative teams cannot be regarded as economic activities.
As the European Court of Justice declared in Walrave, Community law does not affect the composition of sport teams in particular national teams, the formation which is a question purely of sporting interest and as such has nothing to do with economic activity.
The defendants could also argue that the EC Treaty and the free movement of workers have effect only on companies. A football club cannot be regarded as a company in the scope of national matches, although it has economic activities, has and sells exclusive rights on sport. This also follows from the Walrave, mentioned above. This is the reason why the club couldn't be regarded as other multinational companies, and
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Community law don't have effect on it. Professional football works among economic conditions diverse from those affecting other branches of industry because in this area the competitors have an interest that the others keep some of their relative power, as opposed to becoming an exclusive organisation.
FC Tomalona signed the regulation of FIFA. The 2005 Regulation for the Status and Transfer of Players of FIFA (hereunder Regulation) contains special provisions. Annex 1, Article 1 states that:
"Clubs are obliged to release their registered players for representative teams of the country which the player is eligible to play on the basis of his nationality, if he is called up by the Association concerned. Any divergent agreement between a player and a club is prohibited."
These regulations stem from the idea of solidarity for national teams; because of it, the best players of their nation can participate in national matches. In view of the considerable social importance of sporting activities and in particular football in the Community, it is important to maintain a balance between clubs. Considering that every member of the FIFA is compelled to release his best players at least this kind of balance can reached if the economical one cannot.
There are other important orders in the Regulation. In Article 2, we find:
1) "Clubs releasing a player in accordance with the provisions of this annex are not entitled to financial compensation.
2) The Association calling up a player shall bear the cost of travel actually incurred by the player as a result of call-up.
3) The club for which the player concerned is registered shall be responsible for his insurance cover against illness and accident during the entire period of his release. This cover must also extend to any injuries sustained by the player during the international match(es) for which his was released."
This order has legitimacy and is proportional in regard to the financial relations of the clubs. Besides, there is no obstacle for the clubs taking out insurances on their players to compensate the income deficit of accidents and injuries.
The applicants could submit the fact that football clubs spend monumental amounts of money on young and promising football players; it is, therefore, not an unreasonable expectation of the part of these clubs that their investments be repaid. If one of these talented players gets a serious injury in one of his matches, the club loses money; if it is happens in a national team match, the national association should pay compensation to the football club. According to the FIFA Regulation mentioned above clubs must release their players to national matches, but they must be responsible for his illness or accident during the entire period of his release. FIFA has the right to make orders to clubs, that's why it is important to examine whether FIFA has prohibited dominance in professional football.
First it is important to observe whether the Treaty has the effect on the regulation. The Court of First Instance declared in Laurent Piau v. Commission[32 ]that members of FIFA are national amateur and professional associations which must be regarded companies under competition law. This claim follows from the fact that these clubs have and sell exclusive rights on sport connected with the international matches and furthermore they organise such international football cups in connection with which FIFA itself also has exclusive rights that are sold on the market. FIFA as the association of these companies which have economic activities as proved above must be regarded as an association of companies in the scope of the Treaty. The Court also declared that the FIFA's Regulation must be considered to have the same stratus as the decisions of these companies.
Football clubs do not have the opportunity to change or quit the association, because only FIFA has the influence and the organisation to represent football property. Clubs don't have the power to make another association that would have the same influence to represent their interests and the high standard of international cups. That's why it is clear that FIFA has a monopoly is this sector, and takes advantage of its position. Clubs are in a desperate situation: if they release their players to representative matches they must bear the consequences of a serious injury, their alternative is to keep their players within bounds and risk the punishment from FIFA. They also have a third "option": to quit the association the consequence of which is exclusion from international cups, such as the World Cup, or Europe Cup, which are the most important competitions of the football world.
The ECJ declared in the case best known as Chiquita Bananas[33], that the dominant position referred to in Article 82 relates to a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by giving it the power to behave to an appreciable extent independently of its competitors, customers and ultimately of its consumers[34]. In professional football we can say there is no internal market, as teams compete on the national level rather than in a 27-Member-States-wide arena;
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thanks to the free movement of persons, however, players can provide services in Member States. But we can say that in the scope of competition law the whole market of the Community can be regarded as a market, and the services as productions which fall under Article 82. For football to be regarded as forming a market which is sufficiently differentiated from other markets it must be possible for it to be singled out by such special features distinguishing it from other services that it is only to a limited extent interchangeable with them and is only exposed to their competition in a way that is hardly perceptible .
In Article 82 the list of abuses is not an exhaustive enumeration of the abuses of a dominant position prohibited by the Treaty. Article 82 not only aims at practices which may cause damage to consumers directly, but also at those which are detrimental to them through their impact on an effective competition structure such as it is mentioned in Article 3 (f) of the Treaty. Abuse may therefore occur if an undertaking in a dominant position strengthens such position in such a way that the degree of dominance reached substantially fetters competition, i.e. that only undertakings remain in the market whose behaviour depends on the dominant one.
If it can, irrespective of any fault, be regarded as an abuse if an undertaking holds a position so dominant that the objectives of the treaty are circumvented by an alteration to the supply structure which seriously endangers the consumer's freedom of action in the market, such a case necessarily exists if practically all competition is eliminated.
The enumeration of abuses is only exemplary. Hence it could be an abuse if the dominant company reinforces its position to such an extent way that the level of the obtained dominance detains appreciably the competition, say only those companies can stand which depend from the dominant venture in their behaviour[35].
There is no need to examine if FIFA has this dominant position and prescribes any kind of order, which can be quite inequitable. FIFA is an undertaking in a dominant position enjoying a degree of general independence in its behaviour on the relevant market which enables it to hinder to a large extent any effective competition from competitors who can only if need be secure the same advantages after great exertions spread over several years, a prospect which does not encourage them to embark upon such a course, especially after failing several times to obtain these advantages. FIFA takes advantage of the traditions of football, the enthusiasm of this sport and the fact that clubs cannot prevail without it.
The defendants could parry with the fact that as FIFA was organised by football clubs, it is needless to allude to the failure of competition or dominant position. Member clubs have the chance to change the issued regulations. They didn't do it because they know that the capacity of football which is bringing people together, the traditions and the enthusiasm of this activity is so important that it is necessary to keep an association that can maintain football properly, and have regulations which can keep the level of football. If there are more and smaller associations the cups would lose the interest of the fans. FIFA can bring respect to football.
On the other hand it is important to mention that organising football matches or football associations is not a duty of the Member States. That's why it is absolutely nonsense to speak about the monopoly of FIFA. This organisation is open to every football association, its rules are obligatory to every member club, and this is the reason we cannot speak about a dominant position.
Are Articles 39,49,81 and 82 EC to be interpreted as prohibiting national and international sporting associations to impose in their regulations sanctions on players and clubs, such as those inflicted by the FIFA Dispute Resolution Chamber, restricting the possibility to unilaterally terminate a contract, so as to ensure maintenance of contractual stability between professional players and clubs?
The question, whether from the interpretation of Articles 39, 49, 81 and 82 EC Treaty it follows, that national or international sporting associations might impose in their regulations sanctions on players and clubs, such as those being regarded applicable to Kofi Eko's case, can also be distinctly approached from the applicants' and the defendants' points of view. In order to reflect this, it is worth to scrutinise the regime of the passages mentioned.
In connection with the applicability of Articles 39, 49 of the EC Treaty the general prohibition of obstruction plays an important role. This is the principle, which the free movement of workers and the freedom to provide services are backed on. Applicants should give voice to this context.
There is no doubt about the economic nature of Kofi Eko's sporting activity, thus - according to the ECJ judgments[36] - he can be regarded as an employee in the sense of Community law. One could say, that
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the regulation contested does not achieve discrimination on nationality mentioned in Article 39, therefore the applicability of it can be questioned. But the attention should be turned to the Court's recent position about this question. Lately the Court tends to apply the principles laid down in the Dassonville case[37 ]out of the free movement of goods. Bearing this in mind we can assert, that any kind of obstruction or restriction on the free movement of workers can be subsumed under Article 39, regardless of the fact, that those result from state provision or provisions of private entities[38]. Furthermore, it is important to emphasize, that the indirect and potential hindering effect of the given provision suffices. The sanctions based on 2005 FIFA Regulations for the Status and Transfer of Players are capable to prevent players from other Member States to enter the labour force market, though each player is affected by it without distinction, and it influences equally the conditions of the employment of domestic and foreign players.
According to the case law of the European Court of Justice each activity, which is performed in return for consideration, can be regarded as remuneration pursuant to Article 49[39]. The economic link itself is enough, and it should not be direct[40]. Regarding our case, the so called cross-border nature of the service demanded by EC Treaty is obvious. Taking all these into consideration Kofi's sporting activity falls within its scope. The justification mentioned above can also be alluded to. Every non discriminative provision, which are capable to hinder the entry into market of foreign services, infringes Article 49[41]. Here is to stress again, that it does not matter, whether the given provision is of state or private origin.
But from the defendants' point of view the general (public) interest is to be highlighted. The free movement of workers[42] and the freedom to provide services[43] can lawfully placed under restrictions only if they are justified by imperative reasons relating to the public interest. Furthermore these restrictions must not exceed what is necessary to attain those objectives (proportionality). It is obvious, that only an interest of the association which is of paramount importance can be subsumed under the concept of imperative reasons in the general interest[44]. The maintenance of contractual stability between professional players and clubs is a kind of interest mentioned above, especially, that it is in accordance with the domestic legal provisions regulating this question. The contractual stability is an aspect of the due process of law which is a general constitutional requirement in each Member State.
The defendant can also invoke the lack of the cross border element in the sense, that the contractual relation existing between Kofi Eko and A.C. Floriana is an internal legal relation. From the judgement of the Court in Uecker[45] it follows, that in such a situation the Article 39 is not applicable.
The application of competition rules arisen depends on whether football clubs and their associations are to be regarded undertakings and associations of undertakings within the meaning of Article 81 (1), since this passage of the EC Treaty covers agreements between undertakings, decisions by associations of undertakings and concerted practices. As established above, the definition of undertaking can be picked out from the case law of the Court of Justice. According to it, an undertaking involves every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed[46]. In this sense football clubs and their associations possess the features of an undertaking, inasmuch as organising competitions, e.g. the sale of the ticket selling and television broadcasting rights, exploitation of certain logos establish an economic activity[47]. This seems to be a very effective way of reasoning for the applicants. But making an additional remark is necessary. Anti-competitive agreements and decisions of undertakings and their associations fall within the scope of Article 81, if they may affect trade between Member States. In the Consten-Grundig case the Court declared, that only those provisions (agreements, decisions) are covered by Article 81, which are capable of constituting a threat to freedom of trade between Member States in a manner, which might harm the attainment of their objectives of a single market between the Member States[48]. From this wording it follows, that for trade between Member States affected, even a potentially appreciable and indirect effect suffices[49]. The expression "trade" in Articles 81 and 82 is not restricted to trade in goods but covers all economic relations between the Member States[50]. Thus decisions, like those disputed in this case can be restricting on trade between the Member States, since the rules on transfers which they are based on, have also an substantial effect on it. More important fact is however the share of sources of supply through applying these rules, because it constitutes the restriction of competition according Article 85 (2) c).
For the defendants it is advisable to allude to the unnecessary examination of whether the 2005 FIFA Regulations for Status and Transfer of Players might be restricting on competition within the meaning of Article 81. The relation between Kofi Eko and A. C. Floriana matters, because even the relationship be-
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tween the player and his employer is affected by the transfer rules. And this relation can be interpreted only inside the field of employment law where Article 81 is inapplicable. There is, furthermore, no need to speak about the question whether the rules at issue could be exempted under Article 81 (3). Such an exemption could be granted only by the Commission. But if the commission would grant those rules, which are in breach of Article 39, an exemption from the prohibition of Article 81 (1), there would be no difference to the breach of Article 39, thus an exemption under Article 81 (3) would also have to be ruled out[51]. If the venerated Court might engage in examining the hindering effect of the Regulations, it might take into consideration its judgement of 14 December 1994, which shows, that restrictions of competitions which are indispensable for attaining the legitimate objectives pursued by them can not be subsumed under the scope of Article 81 (1)[52]. The maintenance of contractual stability between professional players and clubs is such a legitimate object. Furthermore, the engagement of players is a matter of the clubs, not the associations. Therefore a potential dominant position of the clubs and not of associations might come into question. In a professional league clubs can be united by such economic link, that together they hold a dominant position vis â vis the other actors on the same market[53]. But from the argumentation above it follows, that the relation between a player and his club is at issue, and not between different clubs. So applicability of Article 82 does not come into question.
As seen in the deliberations on all three questions, both parties of the fictional case have arguments for and against them. The "real" case will, of course, be decided by the European Court of Justice, thus putting an end to many questions raised above. Should any of them, however, remain unanswered, they will provide opportunities for reasoning and argumentation exercises for many European Law students in the future.
The authors would like to thank Mihály Maczonkai for his assistance in and encouragement for this project. ■
NOTES
[1] Case C-243/06 Reference for a preliminary ruling from the Tribunal de commerce de Charleroi lodged on 30 May 2006 - SA Sporting du Pays de Charleroi, G-14 Groupment des clubs de football européens v Fédération internationale de football association (FIFA)
[2] Case M-1/06 Kwame and Kofi Eko and F.C. Tomalona v FIFA, UEFA & others
[3] About the competition, see: Horváth Dóra: Európa-jogi jogesetmegoldó verseny Ljubljanában = Jura, 2006/1. 188 or Csöndes Mónika: "Moot, meet, compete" European Law Moot Court Competition regionális döntő Pécsett = Európai Jog 2007/2. 48
[4] Case C-167/94 Criminal proceedings against Juan Carlos Grau Gomis and others. [1995] ECR I-01023, 4.
[5] Case 26/62, NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration ECR English special edition 00001
[6] Case 6/64 Flaminio Costa v E.N.E.L ECR English special edition 00585
[7] Case 30/70 Otto Scheer v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] ECR 01197
[8] Case 36/74 B.N.O. Walrave And L.J.N. Koch v Association Union Cycliste Internationale, Koninklijke Nederlandsche Wielren Unie Et Federación Española Ciclismo [1974] ECR 01405
[9] 2000/483/EC: Partnership agreement between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part, signed in Cotonou on 23 June 2000 (OJ 2000 L 317 p. 3-353)
[10] Case C-415/93 Union royale belge des sociétés de football association ASBL v Jean-Marc Bosman [1995] ECR
I-04921, Operative part, 2.
[11] Case 36/74 [1974] ECR 01405
[12] Declaration on sport attached to the Treaty of Amsterdam, The European Model of Sport DG X Consultation Document
[13] Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Poland, of the other part, signed in Brussels on 16 December 1991 and approved on behalf of the Communities by Decision 93/743/Euratom, ECSC, EC of the Council and the Commission of 13 December 1993 (OJ 1993 L 348, p. 1)
[14] Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Slovak Republic, of the other part, approved on behalf of the Communities by Decision 94/909/ECSC, EEC, Euratom of the Council and the Commission of 19 December 1994 (OJ 1994 L 359, p. 1)
[15] Case C-162/00 Pokrzeptowicz-Meyer [2002] ECR I-1049
[16] Case C-438/00 Deutscher Handballbund eV v Marcos Kolpak [2003] ECR I-04135
[17] C-265/03 Igor Simutenkov v Ministerio de Educación y Cultura, Real Federación Española de Fútbol [2005] ECR I-02579
[18] Simutenkov, especially has been considered to herald equal status for sportsmen from the ACP states. See, for example: Dr. Jan Eickelberg: Unbeschränkter Einsatz von Fußballern aus AKP-Staaten in der deutschen Bundesliga? - Herleitung, Inhalt und Folgen der Entscheidung Igor Simutenkov gegen Ministerio des Educacion y Cultural und Real Federecion Espanola des Futbol = Zeitschrift für europäisches Sozial- und Arbeitsrecht 2005/9. 384-392
[19] Case 2/74 Reyners v. Belgian State [1974] ECR 631.
[20] This was recognized by the Court in Case C-278/94 Commission of the European Communities v Kingdom of Belgium [1996] ECR I-04307, where the rule requiring the completion of secondary schooling in certain schools was declared indirectly discriminatory, as it was more likely to affect (the children of) migrant workers.
[21] In Case C-237/94 John O'Flynn v Adjudication Officer [1996] ECR I-02617, at 20 the Court declared: It follows from all the foregoing case-law that, unless objectively justified and proportionate to its aim, a provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect migrant workers more than national workers and
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if there is a consequent risk that it will place the former at a particular disadvantage.
[22] Joined cases C-267/91 and C-268/91 Criminal proceedings against Bernard Keck and Daniel Mithouard
[23] Case C-55/94 Reinhard Gebhard v Consiglio dell' Ordine degli Avvocati e Procuratori di Milano.
[24] Declaration on sport attached to the Treaty of Amsterdam, The European Model of Sport DG X Consultation Document
[25] OJ L 16, 23.1.2004, p. 44-53
[26] Consultation Document of DG X, 1998
[27] "Having regard to the objectives of the community, the practice of sport is subject to community law only in so far as it constitutes an economic activity within the meaning of article 2 of the treaty. When such activity has the character of gainful employment or remunerated service it comes more particularly within the scope, according to the case, of articles 48 to 51 or 59 to 66 of the treaty." C-38/74. [1974] ECR 1405
[28] It is declared also in C-38/74. [1974] ECR 1405
"17 Prohibition of discrimination does not only apply to the action of public authorities but extends likewise to rules of any other nature aimed at regulating in a collective manner gainful employment and the provision of services.
18 The abolition as between member states of obstacles to freedom of movement for persons and to freedom to provide services, which are fundamental objectives of the community contained in article 3 (c) of the treaty, would be compromised if the abolition of barriers of national origin could be neutralized by obstacles resulting from the exercise of their legal autonomy by associations or organizations which do not come under public law .
19 Since, moreover, working conditions in the various member states are governed sometimes by means of provisions laid down by law or regulation and sometimes by agreements and other acts concluded or adopted by private persons, to limit the prohibitions in question to acts of a public authority would risk creating inequality in their application ."
[29] "Having regard to the objectives of the community, the practice of sport is subject to community law only in so far as it constitutes an economic activity within the meaning of Article 2 of the Treaty. This applies to the activities of professional or semi-professional football players, which are in the nature of gainful employment or remunerated service" C-13/76 [1976] ECR 1333
[30] C- 519/04 David Meca-Medina and Igor Majcen v Commission of the European Communities
[31] C-415/93 ECR [1974] 04921
[32] T-193/02 Laurent Piau v. Commission of the European Communities
[33] C-27/76 United Brands Company and United Brands Continentaal BV v Commission of the European Communities
[34] C-27/76 [1978] ECR 00207
[35] C-78/70 Deutsche Grammophon Gesellschaft mbH v Metro-SB-Großmärkte GmbH & Co. KG. [1973] ECR 00215
[36] C-38/74. [1974] ECR 1405; C-13/76 Dona v Mantero [1976] ECR 1333; C-415/93. [1995] ECR I-4921.
[37] C-8/74. Procureur du Roi v. Dassonville [1974] ECR 837.
[38] C-281/98. Angonese v. Cassa di Risparmio di Bolzano SpA [2000] ECR I-4139.
[39] C-263/86. Belgium v. Huimbel [1988] ECR 5365.
[40] C-I89/90. SPUC v.Grogan [1991] ECR I-4685; C-51/96-191/97. Deliège v. Ligue Francophone de Judo et Disciplines Associées ASBL [2000] ECR I-2549.
[41] C-76/90. Säger v. Dennemeyer and Co. Ltd [1991] ECR I-4221; C-398/95 SETTG v Ypourgos Ergasias [1997] ECR I-3091.
[42] C-415/93 [1995] ECR I-4921
[43] C-33/74. Van Binsbergen v. Bestuur van de Bedrifjs-vereiniging Mtaalnijverheid [1974] ECR 1299; C-110/78 and C-111/78 Ministère public v Van Wesemael & Follachio ECR I-35; C-279/80. Criminal Proceedings v Alfred John Webb [1981] ECR 3305; C-288/89 Collectieve Antennevoorziening Gouda v Commissariaat voor de Media [1991] ECR I-4007
[44] See Opinion of Advocate General Lenz in Bosman.
[45] C-64 and 65/96. Land Nordrhein Westfalen v. Uecker & Jaquet [1997] ECR I-3171
[46] C-19/61. Mannesman v. High Authority [1962] ECR 357 at 371; C-41/90. Höfner and Elser v. Macrotron GmbH [1991] ECR I-1931; C-364/92. SAT v. Eurocontrol [1994] ECR I-43.
[47] 92/521/EEC: Commission Decision of 27 October 1992 relating to a proceeding under Article 85 (now 81) of the EEC Treaty (IV/33. 384 and IV/33. 378 - Distribution of package tours during the 1990 World Cup). OJ 1992 L 326., p. 31.
[48] C-56/64 and C-58/64. Établissement Consten S. A. R. L. and Grundig-Verkaufs GmbH v. Commission [1966] ECR 299.
[49] See the Opinion of the Advocate General Lenz in Bos-man. point 260.
[50] Opinion of the Advocate General Lenz in Bosman point 261; Commission Notice on the effect on trade concept contained in Articles 81 and 82 of the Treaty OJ C 101, 27. 4. 2004, p. 81.
[51] See Opinion of Advocate General Lenz in Bosman. point 278.
[52] The case concerned restrictions in the statutes of a cooperative association, which prohibited members from participating in other forms of cooperative organization in direct competition with that association. According to the Court the compatibility of the relevant clauses with the EC competition law could not be assessed "in the abstract", but depended on the content of the particular clauses and the "economic conditions prevailing on the markets concerned". Therefore the Court came to the conclusion, that such restrictions escaped falling within Article 85 (1) [now 81 (1)] only if they were "necessary" to ensure that the cooperative functioned properly and maintained its contractual power. See C-250/92 Gottrup - Klim v. Dansk Landbrugs Growareseleskab [1994] ECR - I 5641.
[53] See Opinion of Advocate General Lenz in Bosman.
Lábjegyzetek:
[1] The Author is a PhD student.
[2] The Author is a PhD student.
[3] The Author is a PhD student.
Visszaugrás
