The first time I saw ‘Foul!’ by Andrew Jennings in my Library I simply thought ‘my Lord, another left wing, John Pilger-esque, failure.’ I read the first chapter, I didn’t want to believe it, and I justified this by saying that it was rumour/fear-mongering from the British tabloids. In the course of my university studies I was forced into doing ‘Law and Society’.
While essentially this was the most boring thing I had ever done, the 4th assignment excited me. I could do an assignment on anything. ‘Great!’ I cried, now I should point out that this was at the time of the Cristiano Ronaldo to Real Madrid saga. ‘I’ll write on how much of a greasy slime bag he is, wait, that will get me docked marks, ok, I’ll write about how FIFA are right to have Article 17 (5) and how Ronaldo is breaking the rules.’
‘Article 17 (5) any person subject to FIFA statues and FIFA regulations (club officials, players’ agents, players, etc) who acts in a manner designed to induce a breach of contract between Professional and club in order to facilitate the transfer of the player shall be sanctioned.’
In layman’s terms, if the manager of club ‘A’ says to the media ‘I want to purchase the star player of club ‘B’, he should leave his contract and play for us’ then the manager is in breach of FIFA’s statutes and regulations, and is unsettling a player or, as known in football circles, ‘tapping up’ the player. If the club and the player are in contract, does not the player have to serve out the contract?
But I started research, cross referencing from tons of different football journals. Startling findings came to life.
Jean-Marc Bosman was a Belgian footballer plying his trade at SA Royal Club Liegois. In 1990 his contract with RC Liegois expired. The original contract was signed in 1986 with a monthly wage of 120,000 Belgian Francs, for two years. In lieu of taking a massive wage cut, Bosman explored other avenues available for him to leave the club. He joined US Dunkerque under a 1 year loan.
Under the agreement if Dunkerque paid 4.8 million Belgian Francs at the end of the deal, Bosman could join them permanently. RC Liegois believed this fee to be too high for Dunkerque to pay and did not file the appropriate forms for Bosman to leave, then, under rules of the Belgian Football Association, Bosman was suspended from playing.
In 1990, Bosman opened up an action in the courts. Bosman asked for ‘an order the RC Liegois pay him a salary while he found a new club, and asked the court to prohibit the club from seeking a transfer fee for him.'(McArdle, 2000) He also requested that the case be transferred to the European Court of Justice to consider if the current rules in the Belgian retain and transfer system were a restraint of trade and blocking free movement and market.
In 1991 Bosman dragged UEFA into the legal battle for damages, UEFA as a defendant in the case for damages and separately for breach of the EC Treaty article 48, 85 and 86. His main claim was Article 48, which states that ‘Freedom of movement for workers shall be secured within the Community’ and ‘It shall entail the right…to accept offers of employment actually made’ (Treaty of Rome, 1957).
In 1992 the court of appeal upheld the decision to go to the ECJ; EUFA’s rules along with those of the Belgian transfer system were on trial and Bosman. Bosman’s case was based upon two questions, the first about contracts ending and release, the second about quotas for players in teams.
UEFA and the Belgian Football Association claimed that EC law did not apply to sport, but there was precedent and Advocate General Lenz stated that ‘the activities of professional football players are in the nature of gainful employment and are therefore subject to community law'(Bosman, 1996). UEFA also tried saying that FIFA was run in Switzerland, therefore under Swiss law (far more lenient to big corporations in regards to workers), but the Advocate General dismissed this because all EU citizens are under EC law.
Lenz made reference to the Articles and their direct reference to prohibiting the type of system used by the Belgian Association. The Advocate General ruled that the ‘Authorities failed to satisfy the court’ (McArdle 2000) and ruled in favour of Bosman, now FIFA ‘had to put its house in order’ (Dabscheck 2002)
I was interested in the Jurisdiction of football, who actually has the final power over football, FIFA or the ECJ? In a former case, the ECJ ruled that the governing body of the sport has control over sporting matters, while the ECJ can intervene in matters of economic activity. But in Bosman, the Advocate General ruled on competition matters. This is sporting conduct and therefore the Advocate General was acting outside his jurisdiction, but FIFA was breaking the law.
The wizard-new-wheeze came from FIFA; they are a sharp bunch at the end of the day. In 2001 they introduced a massive overhaul of their transfer rules, it took me a while to see this text, it’s not too accessible, but I found it, and I was shocked. I was in my library as I did this, and I saw their copy of ‘Foul!’ I just thought to myself ‘maybe, maybe he was right’. I didn’t read it because the assignment was due any minute.
Here is the biggest find I made: FIFA still enforce a compensation fee for players transferred under the age of 23, on the outside this looks like a good rule, FIFA are backing the smaller clubs. My dad asked me ‘couldn’t this be good for football’ I replied ‘it doesn’t matter, they thought what they were doing before Bosman was for the good of the game, but it is still illegal.’
So now you ask, why hasn’t anyone launched a second Bosman? This is FIFA’s big idea. In the new transfer laws they said that all grievances will go through the Court of Arbitration for Sport, run under Swiss Law. They had stuck two fingers up at the ECJ, and they loved every minute of it. Now the ECJ could not intervene in FIFA matters.
The biggest case to go before the CAS wasGalatasaray SK v Franck Ribery & Olympique Marseille. Galatasaray signed Ribery on a contract that could best be described as an extreme interpretation of Article 17 (5). He took Galatasaray to court claiming restraint of trade, the CAS found in favour of Ribery and he moved to Marseille. But there was no change to FIFA statutes, no turnaround like in Bosman. The CAS do not have as much weight as the ECJ, they are weak compared to the ECJ.
FIFA have got control of football, players cannot get out of line, clubs cannot get out of line, and if they do, if they go to court, then what will it achieve? FIFA are going to have ultimate power in football, and it’s not going to stop until someone realises that they have rights, FIFA cannot stop someone from going to court, someone has to go to the ECJ, put FIFA up for gross restraint of trade, and point out all that is wrong with the laws and statutes of the game.
So I’ll go back to where I started, talking about ‘Foul!’ I didn’t think much more about it, swamped by a bit of university work. But by some cruel twist of fate, I can’t remember what it was, I went to Soccerlens. I saw the stuff about Andrew Jennings ‘FIFA are breaking the law with transfers, what would stop them with fraud’ I thought. I read the interview with a new outlook.
‘The problem with the big federations is, you know, we all know about if you are not accountable to somebody, your partner in life, the police or priests, whatever it is in life, you should know that if you do something wrong, as your mother told you, you’ll get found out.’
FIFA removed the accountability to the court of law, how far will they go? God speed Hildbrand, there is a rotten smell around the Fédération Internationale de Football Association
Dabscheck, B, 2002, Labour Hoarding in English Football, Sporting Traditions Vol. 19, November 1 2002, pp 33-47
Dabscheck, B, 2007, Soccer’s Burgeoning International Jurisprudence, The Australian and New Zealand Law Journal, Vol 2, No 1, pp79-86
McArdle D 2000, They’re playing R. Song. Football and the European Union after Bosman, Football Studies, Vol 3, No 2, pp42-66
Written by Greg Taylor.
This article is a submission for the Soccerlens 2008 Writing Competition; to participate, please read the details here. The competition is sponsored by Subside Sports (premier online store for football shirts) and Icons (official signed football jerseys).