FOOTBALL TRANSFER FEES: ANTICOMPETITIVE?
DOI:
https://doi.org/10.30925/slpdj.1.1.6Keywords:
Article 101 TFEU, Football Governance, Football Transfers, Transfer Fee, Bosman, Meca-MedinaAbstract
This contribution considers the compliance of transfer fees as a part of the football transfer system with EU Competition law. Transfer fees were supposed to undergo an amendment after Bosman, based on the 2001 Agreement between FIFA and the European Commission. In the Agreement, objectives to pursue were set out, most notably stability of contract, pursuit of competitive balance, and promotion of youth development. This contribution aims to build on the existing literature to examine the transfer system under the current regulatory framework. The system is analysed based on Article 101 TFEU and alternatively justified by the Wouters test as established by Meca-Medina, or Article 101(3) TFEU. The pursuit of contract stability and of youth development was found inherent, but disproportional. The pursuit of competitive balance was not found effective. However, the culprit is not any single element of the transfer system, but rather their interaction that creates anti-competitive environment. The contribution discusses what elements of the regulation are most problematic and provides alternatives. The climate of necessity of football governance overhaul as a reaction to the impact caused by the Covid-19 pandemic provides a good opportunity for stakeholders to reform it accordingly.
References
Arnaut, José Luis. Independent European Sport Review, 2006.
Caiger, Andrew and O’Leary, John, ‘The End of the Affair: The Anelka Doctrine - The Problem of Contractual Stability in English Professional Football’, in Caiger, Andrew and Gardiner, Simon (eds), Professional Sport in the EU: Regulation and Re-regulation (TMC Asser, 2000).
Coppo, Gabriele, “Contractual Stability and EU Competition Law”, 1 European Sports Law and Policy Bulletin (2011).
Duval, Antoine and Van Rompuy, Ben. The Legacy of Bosman Revisiting the Relationship between EU Law and Sport. The Hague: T.M.C. Asser Press, 2016.
Egger, Alexander, and Stix-Hackl, Christine. “Sports and Competition Law: A Never-Ending Story?”. European Competition Law Review 23, no. 2, (2002).
Garcia, Borja. “The 2001 Informal Agreement on the International Transfer System”. Loughborough University, January 1, 2011. https://hdl.handle.net/2134/9167.
Hoey, Sam, Thomas Peeters, and Francesco Principe. 2021. “The Transfer System in European Football: A Pro-Competitive No-Poaching Agreement?” International Journal of Industrial Organization 75 (March): 102695. https://doi.org/10.1016/j.ijindorg.2020.102695.
Lorenz, Moritz, and Dietrich, Julia. An Introduction to EU Competition Law. Cambridge: Cambridge University Press, 2013.
McArdle, David. From Boot Money to Bosman Football, Society and the Law. London: Cavendish Pub., 2000.
Norbäck, Pehr‐Johan, Martin Olsson, and Lars Persson. “Talent Development and Labour Market Integration in European Football.” The World Economy 44, no. 2 (2021): 367–408. https://doi.org/10.1111/twec.13071.
Ongaro, Omar, "The system of training compensation according to the FIFA Regulations on the Status and Transfer of Players." The Bernard Case: Sports and Training Compensation, European Sports Law and Policy Bulletin, Rome (2010).
Parrish, Richard. “Article 17 of the FIFA Regulations on the Status and Transfer of Players.” Maastricht Journal of European and Comparative Law 22, no. 2 (2015): 256–282. https://doi.org/10.1177/1023263x1502200206.
Pearson, Geoff. “Sporting Justifications under EU Free Movement and Competition Law: The Case of the Football ‘Transfer System.’” European Law Journal 21, no. 2 (2014): 220–238. https://doi.org/10.1111/eulj.12110.
Pijetlovic, Katarina. EU Sports Law and Breakaway Leagues in Football. The Hague: T.M.C. Asser Press, 2015.
Szymanski, Stefan. "The economic arguments supporting a competition law challenge to the transfer system." available at: http://www.soccernomics-agency.com/wordpress/wp-content/uploads/2021/01/Szymanski_Transfer_System_Expert_Analysis_clean-1.pdf.
Weatherill, Stephen. European Sports Law Collected Papers. The Hague: T.M.C. Asser Press, 2014.
Weatherill, Stephen. “Never Let a Good Fiasco Go to Waste: Why and How the Governance of European Football Should Be Reformed after the Demise of the 'Superleague'.” Accessed 9 November 2022. https://eulawanalysis.blogspot.com/2021/04/never-let-good-fiasco-go-to-waste-why.html.
Advocate General, Case C-325/08, Olympique Lyonnais SASP v Olivier Bernard and Newcastle UFC, EU:C:2010:143.
Case C-415/93, Union royale belge des sociétés de football association and Others v. Bosman and Others, EU:C:1995:463.
Case C-36-74, B.N.O. Walrave and L.J.N. Koch v Association Union cycliste internationale, Koninklijke Nederlandsche Wielren Unie and Federación Española Ciclismo, EU:C:1974:140.
Case C-519/04 P, Meca-Medina and Majcen v. Commission, EU:C:2006:492.
Case C-41/90, Klaus Höfner and Fritz Elser v Macroton GmbH, ECR 1991 I-1979.
Case C-118/85, Commission v Italy, ECR 1987 2599.
Case T-193/02, Laurent Piau v. Commission, EU:T:2005:22.
Case C-325/08, Olympique Lyonnais SASP v Olivier Bernard and Newcastle UFC, EU:C:2010:143.
CAS Decision 2008/A/1519, Shakhtar Donetsk v. Matuzalem.
CAS Decision 2010/A/2145–2147, Udinese v. De Sanctis.
CAS Decision 2007/A/1298–1300, Heart of Midlothian v. Webster and Wigan Athletic.
CAS Decision 2018/A/5925, Ricardo Gabriel Álvarez v. Sunderland AFC.
CAS Decision 2020/A/6727; Benjamin Acheampong v. Zamalek Sports Club.
CAS Decision 2020/A/6770, Sabah Football Association v. Igor Cerina.
CAS Decision 2020/A/7231 Nejmeh Club v. Issaka Abudu Diarra.
Deloitte, Annual Review of Football Finance 2012.
Deloitte, Annual Review of Football Finance 2020.
European Commission Communication of 5 March 2001, IP/01/824.
European Commission Decision in Case COMP/37806 ENIC/UEFA.
European Commission, Guidelines on the application of Article 81(3) of the Treaty, 2004, OJ No. C 101.
European Parliament, Resolution of 29 March 2007 on the future of professional football in Europe, [2006/2130(INI)].
FIFA, Commentary for the Regulation on Status and Transfer of Players (2021 edition).
FIFA, Global Transfer Market Report 2019.
FIFPro, Press Release 17/12/13.
FIFA, Regulations on the Status and Transfer of Players, March 2022 edition.
KEA and CDES, The Economic and Legal Aspects of Transfer of Players, Report for the European Commission, 2013. https://ec.europa.eu/assets/eac/sport/library/documents/cons-study-transfers-final-rpt.pdf.
KEA and CDES, An update on change drivers and economic and legal implications of transfers of players. Final Report to the DG Education, Youth, Culture and Sport of the European Commission, 2018. https://sport.ec.europa.eu/sites/default/files/report-transfer-of-players-2018-en.pdf.
Matt Slater, FIFPro drops bid to outlaw the transfer system as FIFA agrees to a review and gives players right to cancel contracts if clubs refuse to pay them. Daily Mail, [online] https://www.dailymail.co.uk/sport/article-5055015/FIFPro-drops-bid-against-FIFA-outlaw-transfers.html [Accessed 5 November 2021].
UEFA.com. “Explainer: UEFA's New Financial Sustainability Regulations: Inside UEFA,” published April 7, 2022, https://www.uefa.com/returntoplay/news/0274-14da0ce4535d-fa5b130ae9b6-1000--explainer-uefa-s-new-financial-sustainability-regulations/.
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