Regulations 5.3 and 5.4 of the FIFA regulations on the status and transfer of players: a case study before the Court of Arbitration for Sport.

• Author: Ioannidis, Gregory
• Position: ARTICLES - Case study

The status and transfer of football players has been a central issue and at the core of judicial intervention in important cases over a period of forty years. It would be pointless to mention the pioneer George Eastham and his successful application on the restraint of trade argument, back in 1964; or Jean-Marc Bosman and his desire and successful attempt to transform European sport in 1995. This article has not been written with an aim to analyse issues of comodification or commercialisation, but rather to test the application of the regulations in question by national federations and whether this application, violates European law.

This article concentrates on the author's interpretation of the current regulatory framework and it does not attempt to challenge the FIFA Regulations [the outcome would find the author in agreement with the intention of FIFA]. It rather attempts to challenge the application of the said Regulations by national federations and their attempt to circumvent specific decisions of the European Court of Justice and the Court of Arbitration for Sport. It raises issues of competition law, employment law, freedom of movement and issues of governance and regulation.

Before the legal analysis can be produced and an insight into the closing speech of the Appellant's counsel could be given, a factual analysis is imperative, as the reader will be able to appreciate the different dynamics in the application of the current regulatory framework. What follows is an insight into the Appellant's closing speech written for the hearing of this appeal.

The Facts

The Appellant's football player Mr Roman Wallner agreed terms with the Appellant and signed a contract of employment on January 28, 2008. Mr Wallner joined the Appellant on a free transfer, after completing his contractual responsibilities with FALKIRK FC, a club associated with the Scottish FA and participating in the Scottish Premier League (1). Upon such agreement Mr Wallner was selected to participate in the "Super League" [The Hellenic Premier League, thereafter the "Super League"] game between the Appellant and Respondent 2, on February 3, 2008. The Appellant won the game by the score of 1-0, thereby obtaining the three points according to the Laws of the Game of FIFA and Respondent 1. at this point, it is important to state that Respondent 2 had knowledge of the participation [and its particular circumstances] of Mr Wallner in the game that gave rise to the arbitration, as the list with the line up of the players of the two teams, was produced approximately 30 minutes before the start of the game.

Respondent 2 [Olympiakos FC] filed an Objection, 3 days after the end of the game, before the Disciplinary Committee of the Super League, against an alleged invalid participation of Mr Wallner in the game between the Appellant and Respondent 2 and Pursuant to Article 5.3 on the Status and Transfer of Players, which states:

Players may be registered with a maximum of three clubs during one season. During this period, the player is only eligible to play official matches for two clubs. as an exception to this rule, a player moving between two clubs belonging to associations with overlapping seasons (i.e. start of the season in summer/autumn as opposed to winter/spring) may be eligible to play in official matches for a third club during the relevant season, provided he has fully complied with his contractual obligations towards his previous clubs. Equally, the provisions relating to the registration periods (article 6) as well as to the minimum length of a contract (article 18 paragraph 2) must be respected. Further, Respondent 2 requested that the Appeal be allowed and a sanction to be imposed on the Appellant, Pursuant to Rule 23.11 of the Regulation of Professional Matches of Respondent 1. The Disciplinary Committee of the Super League allowed the Appeal, annulled the result and ordered that the game be played again.

Both teams [the Appellant and Respondent 2] appealed against this decision, before the HFFAC (2). The HFFAC allowed the appeal by Respondent 2 and dismissed the Appellant's own appeal. as a result, it forfeited the game in favour of Respondent 2 and deducted a further point from the Appellant and consequently, ordered the Super League to re-adjust the Standings Table, according to its decision.

The HFFAC announced its decision on March 5, 2008 and notified the Appellant the following day. No reasons were given for such a decision (3). The Appellant appealed against the Decision, before the Court of Arbitration for Sport.

What follows is the analysis of the regulatory framework, as it appeared in the closing speech of Counsel for the Appellant. It must be stated, here, that this analysis was not produced before the Panel in this case, as the Appellant decided to withdraw the Appeal just a few days before the hearing and contrary to Counsel's Opinion.

Closing Speech-Court of Arbitration for Sport Lausanne-July 2008

CAS 2008/A/1525 Apollon Kalamarias FC v Hellenic Football Federation & Olympiakos FC

Mr President, Members of the Panel,

This case has given us the opportunity to examine and analyse important issues, currently at the core of the development of the study of sports law. Issues that, no doubt, give rise to different interpretations of the current regulatory framework and suggest that further discussions are needed, but most importantly, changes are imminent. The Court has a unique opportunity to interpret the legislator's intention and to effect these changes.

The undisputed and material facts of the present case have identified one important element: that the current regulatory framework needs further interpretation and clarification, so any additional legal challenges could be prevented. We would aim, in this analysis, to assist the Court with the correct interpretation and application of the Regulations currently in force.

The material facts of the case have also showed that the body responsible for observing and applying the current regulatory framework, in our case, namely the HFF (4), has failed miserably and without compelling justification to interpret, apply and follow the rules currently in force. We showed, above the established standard of proof that the responsibility lies with the HFF. Sadly, the HFF not only breached and failed to apply important regulations, but its inability and sheer incompetence to properly apply the duty of good faith that owes to all clubs in the Hellenic championship, seriously jeopardised the integrity, transparency and independence of the championship.

We also showed that as a result of the HFF's inability to properly investigate and examine the regulations currently in force, its Appeals Committee reached an erroneous decision. Despite the strict instruction from FIFA, that certain regulations must be incorporated into the national framework and applied without any modification, the HFF ignored those instructions and its Appeals Committee misdirected itself by ignoring the binding nature of FIFA Regulations on the Status and Transfer of Players. as a result, this Appeal became inevitable, as the Appellant was deprived of his right to have a fair and proper hearing, and was forced into producing its own investigation and analysing the regulations currently in force. But the omissions and errors at first instance continued further, as the examination of the case showed.

The HFFAC not only failed in its duty to properly apply the FIFA Regulations, but it also ignored the CAS and the European Court of Justice's past decisions. Evidence to this effect, was the reasoned decision rendered by the HFFAC.

It is my respectful submission that the factual analysis clearly indicated to us, that there is a need to follow the established CAS and European Court of Justice Decisions, which provide useful guidance in this difficult and complicated legal analysis. To do otherwise, would mean an unjustified departure from the precepts of the European legal framework, which so clearly has identified and explained the intention of the Treaty of Rome: that workers are free to move within the EU without any restrictions towards providing services and that no discrimination would be tolerated, in terms of nationality. Sport is not immune from these binding decisions and the sporting governing bodies cannot achieve immunisation from judicial intervention: in so far as sport constitutes an economic activity and established European Union law says it does (5), sport must follow the Treaty of Rome. and this Court has an obligation to consider, follow and apply these principles.

Before, however, we reach a point where we need to apply the legal principles of the established European Court of Justice Jurisprudence, it is first of all necessary to examine the intention of the legislator or creator of the current regulatory framework. In addition, we must, very carefully, literally and purposefully, try to discover the actual aim pursued.

As it has been argued by the parties in these proceedings and certainly by FIFA, the aim pursued is the "contractual stability" between clubs and players and the "protection of the sporting integrity" of national and International competitions. We couldn't agree more. But we fail to see how Mr Wallner's professional and contractual activity with the Appellant would "harm" the sporting integrity of a different national championship or "destabilise" the contractual stability of FALKIRCK FC or HAMILTON ACADEMICAL FC!!! and this is true if one considers that both Mr Wallner and FALKIRCK FC have terminated their contractual obligations by agreement!

In addition, Respondent 2 in particular, appears to agree with our interpretation of the current FIFA Regulations, when it states that "Art. 5(3) of the FIFA Regulations-particularly taken by itself-at first sight may appear to restrict the contractual freedom of clubs and players to freely organise their labour relationship."...