Ten years ago the European Court of Justice’s famous ruling in the Bosman case prompted radical change in European club football by releasing players from particularly onerous features of the transfer system. Last Monday, a case was lodged before a court in Belgium which that has the potential to could reshape the relationship between club and international football in a manner every bit as startling.
Abdelmajid Oulmers, a young Moroccan playing for the Belgian club Charleroi, was released to play in for an international friendly match in November 2004. He returned badly injured. He was unavailable for selection for many months and the team’s fortunes declined. Now Charleroi has initiated a legal claim against Fifa, world football’s governing body, seeking compensation. It argues that the rules which that require clubs to release players for international matches violate EC European Community law. The case is lent added piquancy by the formal intervention before the Belgian court of the G-14 group of leading European football clubs, which, as part of its quest to enhance its status in the governance of the game, supports Charleroi’s case against Fifa.
Under Fifa’s rules, are clear. – clubs must release players for a defined period , clubs must and insure against the risk of injury while the player is away on international duty. clubs must, In short, they must take it on the chin if the player arrives home returns weary or , worse, injured. An entitlement to financial compensation is expressly excluded.
To the outsider this seems extraordinary. What other industry requires an employer to surrender a valuable resource asset and to receive no compensation if it is damaged? It is also striking that the relevant rules are established without any direct input from the clubs. Fifa has consistently stuck to the view held that clubs must rely on their national football associations to project their views into the international arena. According to this “pyramid” organisational model, Fifa accords no formal recognition to the G-14 group of leading clubs (or any other group).
Consider too that international football tournaments are to some extent in the same market as club competitions when one takes into account interest from broadcasters and sponsors. for broadcasting rights and sponsorship. So clubs are required to provide a free resource, their players, to an undertaking, Fifa, that is at least in part seeking to make profits from the same sources on which the clubs would wish to draw. Fifa is not merely the sport’s governing body. It is also a direct competitor of with the clubs.
Governing bodies dictate how a sport is run . They and can exclude those who decline to play by the rules. But, by virtue of Article 82 of the EC Treaty, a dominant undertaking must not abuse its power. In my judgment, Fifa has gone beyond its role in of fixing rules for the good of the game by insisting on obligatory and uncompensated release of players employed by the clubs. The onerous and unilateral nature of the current system condemns it as abusive.
So, if Would a victory for Charleroi and the G-14 win their case, by showing that the current rules are illegal, will this destroy international football? Not necessarily. The rules governing player release will would have to be changed but I suspect there is space for an adjusted system that will comply complies with EC law. This might involve an obligation to release players being imposed on clubs, with corresponding obligations imposed on the governing bodies to provide compensation. Some national associations are too poor to compensate clubs, but federations could cope with this by establishing a revenue pool into which a slice of profits from international competitions could be paid before distribution to individual countries. Rich countries would subsidise poor countries, whereas at present clubs subsidise all countries.
Moreover, since it is strongly arguable that the current exclusion of the clubs from the process of fixing the rules is unlawful, a committee representing all affected interests, including those of the clubs, could be set up to determine the balance of rights and obligations in this matter. Under this model, clubs would not enjoy unfettered discretion to decide whether or not to release players chosen to play for the national team but they would participate in the making of decisions that directly affect their commercial interests and they would not be excluded from direct access to profits raised. The central legal point is that the current arrangements go far beyond what is necessary for the operation of international football. It is abusive for Fifa to enforce rules which that allow it to take the benefit of the profits generated while imposing the burden of supplying players on clubs.
The fate of litigation is always uncertain because of the possibility that a settlement will be reached before a court delivers a final verdict. But if Oulmers, like Bosman before it, goes all the way, it will dramatically alter the balance of power within the game. If Charleroi and the G-14 win this case, the voice of the clubs will become much louder. Governing authorities will not be forced to abandon their right to shape matters such as the offside rule but their exclusive grip on decision-making which that directly affects the commercial interests of the clubs will be loosened. The lesson of Bosman is that the game can cope – but only if it responds imaginatively.
The writer is Jacques Delors professor of European law at Oxford University