Perfect pitch: how U.S. sports financing and recruiting models can restore harmony between FIFA and the EU.

• Author: Snyder, Christine
• Position: International Federation of Ass'n Football

When the Federation Internationale de Football Association (FIFA), the worm governing body for football, announced its plan to implement a new rule restricting the number of foreign players eligible to play for club teams the worm over, the European Union took notice. Prior court rulings on a similar rule found that such a rule conflicts with the protection for the free movement of workers under the EC Treaty. Despite this conflict, the President of FIFA pressed forward, citing three main justifications for implementation of the new rule. This Note examines each of those justifications and proposes alternative solutions based on US. financing and recruiting models which will not conflict with the essential protections of the EC Treaty.

1. INTRODUCTION

   "Sports is like war without the killing." (1) These words ring true today as a battle brews over the state of European football. (2) The epicenter of this battle is the top league pitches in Europe. (3) There is a good reason why the European football leagues are the focus of so much attention; that is where the money is. Clubs in the English Premier League (EPL), the top level football league in England, are among the biggest earning clubs in the world, (4) and English football accounts for one-fourth of the total revenue for football in Europe. (5) Italian League Serie A is not far behind England, and France's Ligue 1, Spain's La Liga, and Germany's Bundesliga round out the "big five" leagues that dominate the football world. (6)

   This financial dominance is the reason Europe recently became a battleground between the Federation Internationale de Football Association (FIFA) and the European Commission (EC). (7) The battle began when FIFA proposed measures that would limit the number of foreign players who can be on a pitch to five. (8) Currently, there is no limit to the number of foreign players permitted to start for a club. The other six spots on the pitch must go to players who are eligible for the national team of the country in which the team is located. (9)

   FIFA's new "6+5 Rule" is reminiscent of a similar rule that the European Court of Justice (ECJ) held violated the Treaty Establishing the European Community (EC Treaty). (10) Despite this conflict, FIFA President Sepp Blatter plans to forge ahead with the plan to implement the 6+5 Rule, believing that the problems facing football today justify the Rule and that it is only a matter of time and effort to convince the EC of the error of its ways. (11) In the face of Blatter's determination, the EC has pushed back stressing its strict adherence to the principles of the EC Treaty and threatening action against any club that tests its resolve. (12) Caught in the middle is the Union of European Football Associations (UEFA) which, as a member of FIFA, must implement FIFA mandates, but as an organization operating in Europe, must also adhere to European Union (EU) law. (13) The battle is coming to a head as the first phase of FIFA's plan is scheduled for the 2010-2011 season. (14)

   This Note will evaluate Blatter's justifications for the 6+5 Rule, demonstrate how the 6+5 Rule will do little to solve the problems Blatter argues are facing football today, and propose solutions based on successful practices in the U.S. Part II discusses the background leading up to the current conflict by examining the applicable provisions of the EC Treaty, the relevant cases applying those provisions to sports, and the significant details of the current stand-off between the EU and FIFA. Part III scrutinizes the three concerns FIFA uses as justification for the proposed 6+5 Rule and argues that one of these concerns is invalid, and the other two, while valid, do not find relief under the 6+5 Rule. Part III also explains how FIFA's argument that sports should be exempt from the EU's principles of free movement of workers and anti-discrimination is unsupportable. Part IV outlines solutions proposed by others that fail to adequately solve the problems facing European football today. Finally, Part V proposes a framework of regulations based on American sports that will address FIFA's concerns while staying within the scope of the EC Treaty.

2. BACKGROUND AND THE CURRENT CONFLICT

   1. Freedom of Movement of Workers and Non-Discrimination Principles In the EU

      In order to understand the current conflict between the EU and FIFA, it is necessary to grasp the goals of the EC Treaty and the freedoms it protects. In the Preamble to the EC Treaty, the framers of the EC Treaty "[r]esolved to ensure the economic and social progress of their countries by common action to eliminate the barriers which divide Europe." (15) Article 2 of the EC Treaty establishes the principle that in order to accomplish its goals, the European Community must "promote throughout the Community a harmonious, balanced, and sustainable development of economic activities...."(16) In order to do so, the EC Treaty recognizes the necessity to establish the free movement of goods, persons, services, and capital. (17) Under the free movement of persons element, Article 39 (ex 48) deals with the free movement of workers. (18) Specifically, Article 39 (ex 48) states that "[the] freedom of movement shall entail the abolition of any discrimination based on nationality between workers...." (19)

      In order to enforce the provisions of the EC Treaty, the EU established the ECJ. The ECJ's function is to interpret the EC Treaty and ensure that its provisions are followed within the EU Member States. (20) Since its establishment, the EC Treaty has governed activities in Member States, but for a time it was unclear just how the principles inherent in the EC Treaty applied to sports. Several ECJ cases clarify the appropriate application of the EC Treaty in sports and establish the EU's regulatory control over the sporting world. (21)

   2. Application of EC Treaty Principles to Sports

      Before cases emerged to establish EU regulatory control over sports, football leagues in Europe operated under UEFA's 3+2 Rule which dictated that clubs could field no more than three foreign players from other Member States plus an additional two foreign players who have "assimilated" as a result of their length of play in the club team's State. (22) Under this system, teams distinguished players and limited their play based on nationality. A series of three cases established the appropriate application of the EC Treaty in sports and invalidated player restrictions based on nationality. The first two, Walrave v. Association Union Cycliste Internationale and Dona v. Mantero, paved the way for the third case, Union Royale Beige des Societes de Football Association (ASBL) v. Bosman, to finally invalidated the 3+2 Rule.

      The first case to link the freedom of movement of workers and antidiscrimination provisions of Article 39 (ex 48) of the EC Treaty to sports in Europe was Walrave. (23) Walrave concerned two Dutch citizens who wished to work as pacemakers for motorcycle racing teams from other Member States but were prohibited from doing so by cyclist union rules. (24) The ECJ in Walrave ruled that sport falls within the realm of Article 2 of the EC Treaty in that it "constitutes an economic activity within the meaning of Article 2...." (25) Therefore, Article 39's rules against discrimination based on nationality apply in the context of sports. (26)

      Similarly, the ECJ applied the EC Treaty provisions to European football in Dona v. Mantero. (27) In Dona, the ECJ scrutinized Italian Football Federation rules that restricted play to only Italian nationals. (28) The court held that these rules, which discriminated based on nationality, were inconsistent with Article 39 (ex 48) of the EC Treaty. (29)

      In both of these cases, it is important to note that the ECJ carved out an exception for sporting activities that are of a "purely [] sporting interest" and not economic in nature. (30) This exception was meant to protect national teams organized to compete in international competitions like the World Cup or the Olympics. (31)

      While Walrave and Dona provided the groundwork for the ECJ to extend the provisions of the EC Treaty into the sporting world, the Bosman case changed the face of European football. In Bosman, Belgian national football player Jean-Marc Bosman challenged the validity of the football transfer system after his Belgian club and the French national association blocked his transfer to a French club. (32) As a result, Bosman was left without a club in either country and forced to sit out for a year of play. (33) Bosman single-handedly upset the way European leagues operated. (34) First, it invalidated the system that European clubs were using to transfer players by ruling that the transfer system violated the freedom of movement of players. (35) Secondly, the ECJ ruled that the rules regarding the permissible number of foreign players constituted discrimination based on nationality and was also a violation of Article 39 (ex 48) of the EC Treaty. (36) In his opinion, Advocate General Lenz stated that the rules in the Bosman case "represent[ed] an absolutely classic case of discrimination" and Article 39 (ex 48) prohibited these rules "in so far as they relate[ed] to nationals of other Member States." (37)

      The Bosman decision sent shockwaves through the football world, but the ECJ was not finished. (38) While Walrave, Dona, and Bosman only applied to individuals who were nationals of other Member States under the EC Treaty, another series of rulings took the principles established in Bosman and applied them to nationals of non-Member countries. (39) The EU found a way to extend the Bosman principles to non-EU nationals through the numerous Association and Cooperation Agreements between the EU and non-Member States. (40) These agreements often contain provisions requiring non-discrimination in employment. (41) Recognizing that application of the EC Treaty's non-discrimination principles under these...