Is Fifa offside on competition rules?
By Johan Sahl
The attention of football fans is focussed on the World Cup at the moment, but the future of the game is set to be decided by a legal battle surrounding the European competition rules.
The impact of EU law on the sport has been felt keenly since European football associations were left shell-shocked by the Bosman ruling. Although Uefa, the European football association, and the respective national associations have a reasonably free reign in laying down the rules of the game domestically, the European Commission has not been shy about stepping in when the economic activities of those associations, or the clubs and leagues within them, infringe competition laws.
The Commission's most recent probe - into the English FA's sale of Premier League television rights - remains fresh in the mermory. Sky's exclusive right to air live games was seen as stifling competition and reducing consumer choice, in violation of European competition law. Earlier this year, the Commission finally announced that it had accepted the FA's commitment to, among other things, prevent a single broadcaster buying all six available games packages for the period 2007-2010. The FA had argued that non-exclusivity would lead to a price crash. But the new deal, which saw BSkyB getting two-thirds of the games and Setanta bagging the rest, actually turned out to be even more profitable for the association than the previous exclusive deal.
However, this level of accord may prove highly transient after the eruption of a new legal battle that could have consequences as far-reaching as Bosman.
Charleroi SC, a club in the top Belgian league, is suing Fifa over an injury sustained by one of its players, Abdelmajid Oulmers, while playing for Morocco's national team. Fifa's rules exclude compensation to the employer club in such cases, but Charleroi, supported by the G-14, an organisation of the top 18 European football clubs, claims Fifa's rule dictating the compulsory release of players for international games is an abuse of its dominant position and in breach of competition laws. The Belgian court threw out one of the G-14's claims, seeking compensation of €860 million from the body for injuries sustained by various players over the past 10 years, it decided to refer the issue of the legality of the rule to the European Court of Justice.
A parallel case is now underway in France, where Olympique Lyon is suing Fifa for a long-term injury picked up by defender Eric Abidal while playing for France. It has also recently been reported that Newcastle United may take similar action against the FA after Michael Owen was ruled out for five months following his injury against Sweden.
Apart from compensation, the clubs are looking for Fifa to change the rules on release for international games and, more generally, for the power balance in world football to be shifted from Fifa and the national associations to the clubs. Amid fears that this could spell the end for competitive national team football, Sepp Blatter, the head of Fifa, has warned that "if [the G-14] want a World War, they can have it". He has also allegedly threatened to exclude members of the G-14 from international club tournaments such as the Champions League.
Meanwhile, Uefa is holding talks with the EU regarding the issue of "homegrown players". Responding to concerns about the big clubs, notably in Britain, fielding increasingly fewer domestic players, Uefa has worked out a proposal aimed at preserving football clubs’ youth programmes and other grassroot activity. The proposal involves a requirement upon clubs, by 2008-2009, to include in their squads for Uefa competitions at least four players "brought up" by the club and at least four others meeting this criterion in relation to the country. These plans [deleted] may be blocked if they are found to restrict the free movement of workers within the EU. The initial reactions from European Commission have however been kind, the commission apparently recognising the proposal's social and cultural benefits. No EU action appears to be on the cards for now.
The fact competition law arguments are being increasingly used in private disputes, such as the Oulmers case, sends a clear message: football clubs and associations need to be aware that they are subject to EU laws on competition and free movement, just like any other business. A "schoolboy error" in this field can end up costing millions.
Johan Sahl is a member of the EU and competition team at Maclay Murray & Spens.