Study into the possible participation of EPFL and G-14 in a social dialogue in the European professional football sector.

• Author: Siekmann, Robert

Chapter 1: Introduction

The purpose of this study is to investigate whether EPFL and G-14, as European employers' organizations may participate in a possible Social Dialogue with FIFPro under the EC Treaty in the professional football sector. An additional question to be answered is which themes might be relevant to be put on the agenda of a European Social Dialogue

in particular from the perspective of G-14.

One precondition is of course that the objects, the mandate (and the tasks) of EPFL and G-14 must (implicitly or explicitly) allow them to deal with "industrial relations" including a Social Dialogue. We will examine whether this is the case on the basis of the Statutes of both organizations, as presumably the status of employers' (interest) organization is a conditio sine qua non for admittance to a Social Dialogue. This point will be dealt with in Chapter 2. In this context, it is also important with regard to EPFL whether "industrial relations" and Social Dialogue are part of the objectives of the national Leagues (EPFL now has 15 members). The national Leagues can only have mandated EPFL to deal with these aspects at European level if they themselves are expressly or otherwise empowered under their Statutes to do so. In view of the question concerning the (in)dependence of EPFL and G-14 in relation to UEFA and FIFA as well as of the Leagues in relation to the FAs (see below in Chapter 3) the objectives of UEFA and FIFA must also be taken into account.

The social partner organizations must be able to function freely, without outside intervention. This may be considered as an implicit condition for meaningful participation in a Social Dialogue in a free, democratic community of States and in its individual Member States. In the football world the clubs are affiliated to their national FA which is represented in the international federations UEFA and FIFA. This is termed a "pyramid model" with FIFA at the top, UEFA at the European regional intermediate level and the FAs at the bottom. Football is administered according to this model. The model consists of levels of administration which transcend the clubs. The question therefore is whether EPFL and G-14 as clubs' organizations for the purposes of a Social Dialogue can operate sufficiently independently from the governing bodies. This point will be investigated in detail in Chapter 3. With regard to EPFL not only the relationship to the Leagues/members which must have commissioned EPFL to deal with "industrial relations" including a Social Dialogue is important, but also the way the Leagues are affiliated to the FAs at the national level.

Apart from that, employers' and employees' organizations and EPFL and G-14 alike have to fulfil certain (explicit) criteria which have been developed by the European Commission. This aspect shall be dealt with in Chapter 4. In this context, the question may be asked which lessons can be learned from previous practice regarding the application of the criteria in other industrial sectors, for it may be presumed that the (manner of) application of the criteria in principle also determines their precise meaning and importance. What is the "case law", what useful precedent exists? (Chapter 5).

There is another EU perspective which is even broader than that of the criteria and which deserves to be examined here. What does it mean for the possibility of participation of EPFL and G-14 in a Social Dialogue that "the specific characteristics of sport" should be taken into account in the European context (Treaty of Nice)? This question will be dealt with in Chapter 6.

In Chapter 7 the question of which themes might be particularly relevant for G-14 in a Social Dialogue is examined.

Finally, Chapter 8 contains a summary of the conclusions of this study into the possible participation of EPFL and G-14 in a Social Dialogue in the European professional football sector.

Chapter 2: Mandate, tasks and purposes

EPFL

The relevant objectives of the Association of European Union Premier Professional Leagues, the predecessor of the current EPFL (Association of European Professional Football Leagues), were as follows: to participate in and appoint representatives to UEFA's Professional Football Committee and to work with UEFA for the good of professional association football in Europe; and to foster friendly relations between the Association and the players' unions operating within the territory of member Leagues (Art. 2 of the Accord of the Association).

The tasks and purposes of the current EPFL are formulated as follows. Each member has agreed with the other members to form a non-profit association to create and/or increase cooperation amongst themselves in order to develop their own activities and to act jointly whilst promoting professional football in accordance with the respective statutes and regulations of the UEFA and FIFA (Preamble of the Constitution of the Association of European Professional Football Leagues). The Association will have the following two objectives: a) To fulfil and comply with the Memorandum of Understanding signed between the Leagues and UEFA on 6 June 2005 and 1 July 2005 (respectively) and approved by FIFA in Marrakech on 10 September 2005. The Leagues and the EPFL have the duty to notify to FIFA and UEFA any activity which may have an impact on the Memorandum of Understanding. b) To administer all rights and duties arising from the abovementioned Memorandum of Understanding. In this respect, the Association will inter alia have the following purposes: to be the voice of professional football Leagues in Europe on all matters of common interest; to achieve full recognition by FIFA and UEFA; to participate in and appoint representatives to the UEFA Professional Football Committee and/or such other UEFA committees as may from time to time be agreed; to foster friendly relations between the Association and organizations representing players operating within the territory of member and associate member Leagues; to consider Social Dialogue issues at a European level and where appropriate act as a social partner (Art. 1.3 of the EPFL Constitution).

Article 3 of the Memorandum of Understanding between UEFA and EPFL dealing with Objectives of Cooperation inter alia states that to protect and promote the common values and concerns (see Art. 2) the parties agree as follows: to create and develop, in conjunction with player representatives, a tripartite European football dialogue between the EPFL, UEFA and player representatives, so as to ensure that the specificity of football is always included when discussing labour-related matters and, if appropriate, to reach agreements in this forum in accordance with the tripartite agreement dated 27 January 2004 whilst also recognizing UEFA's presence as a third party in any social dialogue in Europe in order that UEFA fulfils the roles of, inter alia: guardian of sporting rules and values; representative of those territories where clubs and players are not represented by the EPFL/player representatives involved in such a dialogue; and guarantor of the essential solidarity between the various levels of football practice, from recreational to top-level football.

As to the objectives of UEFA and FIFA, the first objective of UEFA is to deal with all questions relating to European football (Art. 2 of the UEFA Statutes). Among the objectives of FIFA are to improve the game of football constantly and promote it globally and to control every type of Association Football (Art. 2 of the FIFA Statutes).

The following conclusion may be drawn from this. As "the voice of the Leagues" EPFL seemingly wishes to manifest itself as the better alternative for G-14, "the voice of the clubs". EPFL desires to be the representative in all matters of common interest of which a European Social Dialogue is clearly one. EPFL is thus duly authorized by its members, the national Leagues, to participate in a European Social Dialogue, irrespective of whether this is an EU Dialogue or an informal non-EU Dialogue. The first objective of EPFL is to fulfil and comply with the Memorandum of Understanding with UEFA, according to which EPFL shall recognize "UEFA's presence in any social dialogue in Europe".

Austria

The purpose of the Austrian League (Osterreichische Fusball-Bundesliga) is to promote Austrian elite football, to deal with all questions concerning elite football, to promote the sportive and economic interests of the clubs in particular, and to regulate the working conditions of the clubs' employees, in particular also by concluding collective bargaining agreements (Art. 1 of the League Statutes).

The purpose of the Austrian Football Association (FA) is to promote, supervise and regulate association football in Austria, to represent association football at home and abroad and to maintain relations with FIFA and UEFA, while observing the Statutes, Regulations and decisions of FIFA and UEFA (Art. 2 of the FA Statutes).

We may therefore conclude that the Austrian League is expressly authorized to participate in "industrial relations", including the conclusion of collective labour agreements.

Belgium

The purpose of the Belgian League (Ligue Professionelle de Football/Liga Beroepsvoetbal) is the promotion and development of professional football in Belgium (Art. 3 of the League Statutes). From Article 3 it also follows that the League represents the clubs as employers of the professional football players in Belgium, both nationally and internationally. The Belgian FA has attributed to the League the full and sole competence to represent professional football in Belgium (Art. 39 of the League Statutes; see also Chapter 3 below under "Belgium").

The purpose of the Belgian FA is to handle the administrative and sportive organization of association football (Art. I/3 of the FA Statutes).

The Belgian League is thus expressly an employers' organization and as such is mandated to participate in...