The FIFA player release rule: critical evaluation and possible legal challenges.

• Author: Taricone, Francesco

1. Introduction

   For athletes, there is nothing like representing their country in events like the Olympic Games or the World Cup. Sometimes their dreams become true and they are picked to represent their national team. But there is a problem: in professional sports those athletes are none other than employees, with their employers (the clubs) that pay for their work performance.

   The club is basically the job market. If an employer pays his employees, he expects that they are available to do their job without any interference from the outside, in order to maximise the club profits. In this scenario, it is evident that losing a player for a period of time could damage the club outcome (in this case, the possibility to achieve sporting targets).

   The increasing commercialisation of the sports world has lead, in the last decades, to a massive conflict between domestic and international football.

   Clubs complain that FIFA rules that force them to release their players are "draconian" (1), with an abuse of dominant position, because FIFA does not serve the general interest of football (as it should do), but only the interest of federations. On the other hand, FIFA holds that the Player Release rule is "indispensable for ensuring the organisation of international competitions and maintaining the integrity of our sport." (2).

   In this essay, after a short historical panoramic, there will be made a deep analysis on the legitimacy of the FIFA Player Release rule in the light of the "Wouters Test" adopted in Meca-Medina, with an in-depth examination of the injury compensation problem.

2. The Player Release Rule

   The FIFA player release rule is established in article 1, paragraph 4 of the Regulations for the Status and Transfer of Players, in conjunction with annex 1 of the same regulations.

   According to this rules, "clubs are obliged to release their registered players to the representative teams of the country for which the player is eligible to play (...) if they are called up by the associated concerned" (3), and they are "not entitled to financial compensation" (4).

   Furthermore, "the club with which the player concerned is registered shall be responsible for insurance against illness and accident during the entire period of his release" (5).

   The discipline consists, as Tannler correctly pointed out, of three elements:

   * The duty to release players

   * FIFA's International match calendar

   * The no-compensation principle (6).

   Regarding the first point, it is glaringly obvious how important is this rule for the existence of International Football.

   The absence of a similar rule "would weaken international sport" (7), with consequences also for clubs, considering that they "benefit from the player's appearances for the national team as the player has the opportunity to promote and show himself on the international stage" (8).

   It is important to remind that any divergent agreement between a player and a club is prohibited (Annex 1, Article 1).

   As far as the International match calendar is concerned, the guidelines are set by the "Release of players for national association representative matches" document (9).

   There are some differences between qualifying matches and friendly matches, regarding the release period and the priority over club matches.

   For example, clubs are not obliged to release a player for friendly matches on dates outside the coordinated international match calendar. (10)

   This problem has been encountered in 2008 Olympic Games with the dispute between Ronaldinho and FC Barcelona (11). This is, however, a critical point in the relationship between clubs and players, considering the enormous appeal and importance that International events such as the Olympics have for some players (especially for those who have a strong national pride). A modification in the rule should be considered, with the participation of players in this process.

3. The No-Compensation Principle: Problems And Case Law

   The critical point in the FIFA Player Release rule is, without any doubt, the no-compensation principle. Basically, the problem is that clubs pay players who cannot be used. It is like if an employer pays employees whom he is forced to release to another employer: it does not sound logical!

   In the past, the supremacy of national teams was not contrived. In the last years, however, the increased importance of commercial aspects in sport forced clubs to have all the players available and at their best, in order to gain more money from broadcasting rights and commercial revenues.

   The first conflicts happened towards the end of the 1980s, when European clubs "no longer regulated the release of players in employment contracts and refused to make them available, against the players' wishes, for international duty." (12).

   The situation, however, did not reach moments of high crisis until 1998 with the case of the Italian Alessandro Nesta, who broke his leg during the World Cup. His club, SS Lazio, asked for a [pounds sterling] 6 million compensation to be paid from the Italian Football Federation, starting a deep debate in the public opinion. (13)

   Another critical point was reached in 2005 with the case of Eric Abidal. Lyon Chairman Jean-Michel Aulas sued FIFA for [pounds sterling] 675,000 with the support of G14 (which represented Europe's top 18 clubs, including Lyon). (14) The biggest challenge against the FIFA Player Release rule started in the same year.

   A Moroccan player, Abdelmajid Oulmers, was injured during an international match. Immediately his club, Charleroi FC, asked for a compensation and the Charleroi Tribunal of Commerce referred to the European Court of Justice (ECJ).

   For the first time the ECJ was asked to consider "whether the obligations on clubs and football players having employment contracts with those clubs imposed by the provision of FIFA's statutes and regulations providing for the obligatory release of players to National Federations without compensation and the unilateral and binding determination of the co-ordinated International match calendar constitute unlawful restrictions of competition or abuses of a dominant position or obstacles to the exercise of fundamental freedoms" (15) (Articles...