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THE PRINCIPLE OF FREE THE PRINCIPLE OF FREE MOVEMENT OF PLAYERS AND MOVEMENT OF PLAYERS AND

ITS IMPACT ON THE FIFA ITS IMPACT ON THE FIFA REGULATIONSREGULATIONS

MICHELE COLUCCIMICHELE COLUCCIwww.colucci.euwww.colucci.eu

E-mail: info@colucci.euE-mail: info@colucci.euKULEUVEN, KULEUVEN,

CAS-LEUVEN 2011CAS-LEUVEN 2011

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FREE MOVEMENT OF WORKERSFREE MOVEMENT OF WORKERS

Artt.45 TFEU Artt.45 TFEU Workers have the right toWorkers have the right to::– accept offers of employment actually made;;– move freely within the territory of Member

States for this purpose;– to stay in a Member State for the purpose of

employment;;– to remain in the territory of a Member State

after having been employed in that State..

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CASE LAW OF ECJ: evolutionCASE LAW OF ECJ: evolution

Definition of «worker»:Definition of «worker»:– A PERSON PERFORMS SERVICES OF SOME A PERSON PERFORMS SERVICES OF SOME

ECONOMIC VALUE FOR AND UNDER THE ECONOMIC VALUE FOR AND UNDER THE DIRECTION OF ANOTHER PERSON IN RETURN DIRECTION OF ANOTHER PERSON IN RETURN FOR WHICH HE RECEIVES REMUNERATION FOR WHICH HE RECEIVES REMUNERATION ((Lawrie-BlumLawrie-Blum, C-66/85)., C-66/85).

«Community meaning»(«Community meaning»(Unger,Unger, C-75/63). C-75/63).Fundamental Principle: broad interpretation Fundamental Principle: broad interpretation ((Levin, Levin, C-53/81).C-53/81).Exceptions and derogations: strict interpretation Exceptions and derogations: strict interpretation ((Kempf,Kempf,C-139/85).C-139/85).

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EQUAL TREATMENTEQUAL TREATMENT

BAN ON “DIRECT” DISCRIMINATIONS BAN ON “DIRECT” DISCRIMINATIONS Art. 18 TFEU on the basis of nationalityArt. 18 TFEU on the basis of nationalityArt. 45 TFEU:…Art. 45 TFEU:…– Access to employmentAccess to employment– PayPay– Employment conditionsEmployment conditions

Association agreement, Co-operation Association agreement, Co-operation agreement, and so on.agreement, and so on.SPORT: Balog case, Simutenkov, caseSPORT: Balog case, Simutenkov, case

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« COVERT DISCRIMINATIONS »« COVERT DISCRIMINATIONS »

NO « NO « COVERT FORMS OF COVERT FORMS OF DISCRIMINATION” which, by the DISCRIMINATION” which, by the application of other criteria of application of other criteria of differentiation, lead in fact to the same differentiation, lead in fact to the same result . result . (cause 152/73 Sotgiu)(cause 152/73 Sotgiu)

YES, only in case of « objective reasons »; YES, only in case of « objective reasons »; proportionality test!proportionality test!

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THE UEFA HOMEGROWN THE UEFA HOMEGROWN PLAYER RULEPLAYER RULE

THE UEFA HOMEGROWN PLAYER THE UEFA HOMEGROWN PLAYER RULERULEHomegrown: player trained by a club for 3 Homegrown: player trained by a club for 3 years when he is between 15 and 21 years when he is between 15 and 21 years oldyears old– 2006/2007 2006/2007 4 up to 254 up to 25– 2007/20082007/2008 6 up to 256 up to 25– 2008/20092008/2009 8 up to 258 up to 25No discrimination on the basis of nationality.No discrimination on the basis of nationality.

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Reverse discriminationReverse discrimination

“ “National law” v. “EU law”:National law” v. “EU law”:– Different scopeDifferent scope– different goalsdifferent goals

EU Law does not apply to purely EU Law does not apply to purely internal matters.internal matters.

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The case law of the ECJThe case law of the ECJ

““SSport is subject to Community law in so far as it port is subject to Community law in so far as it constitutes an economic activity within the constitutes an economic activity within the meaning of Article 2 of the Treaty” meaning of Article 2 of the Treaty” ..

Walrave case, C-36/74.Walrave case, C-36/74.

Donà v. Montero case, C- 13/76(nationality Donà v. Montero case, C- 13/76(nationality clause).clause).

sports or economic activity?sports or economic activity?– C-51/96 C-51/96 Deliège case”, Deliège case”, C-176/96, C-176/96, Lethonen case, Lethonen case,

Meca – Medina case(doping).Meca – Medina case(doping).

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THE BOSMAN caseTHE BOSMAN casecause C -415/93cause C -415/93

DAVID v. GOLIAH!DAVID v. GOLIAH!

Sport= economic activity= Sport= economic activity= the end of the end of transfer compensationtransfer compensation

NO QUOTA!NO QUOTA!

Quid training ? Quid training ?

The new FIFA regulations on Status and The new FIFA regulations on Status and Transfer of Players Transfer of Players

1010

FIFA regulations on Status and FIFA regulations on Status and Transfer of PlayersTransfer of Players

The Gentlemen’s agreement (2001)The Gentlemen’s agreement (2001)– The five principles:The five principles:

free of movement,free of movement,protection of minors,protection of minors,training compensation,training compensation,solidarity mechanism,solidarity mechanism,dispute resolution and arbitration system.dispute resolution and arbitration system.

2001 FIFA Regulations2001 FIFA Regulations

2004 – 2005 -2008 – 2010 FIFA 2004 – 2005 -2008 – 2010 FIFA RegulationsRegulations

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ContractContract

Maximum of 5 yearsMaximum of 5 years

For under 18:maximum of 3 yearsFor under 18:maximum of 3 years

Mention to the name of the agentMention to the name of the agent

It is It is not subject not subject to a positive medical to a positive medical examination and/or the granting of a work examination and/or the granting of a work permitpermit

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CONTRACTUAL STABILITYCONTRACTUAL STABILITY

Respect of contractRespect of contract

Terminating a contract for Terminating a contract for – By mutual agreementBy mutual agreement– Just CauseJust Cause– Sporting Just CauseSporting Just Cause

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ART. 17 of the FIFA RegulationsART. 17 of the FIFA Regulations

The following provisions apply if a contract is terminated without justcause:

1. In all cases, the party in breach shall pay compensation. Unless otherwise provided for in the contract,

compensation for the breach shall be calculated with 1. Due consideration for the law of the country concerned, 2. The specificity of sport, and 3. any other objective criteria.

These criteria shall include, in particular, A. the remuneration and other benefits due to the player under the existing

contract and/or the new contract,B. the time remaining on the existing contract up to a maximum offive years, C. the fees and expenses paid or incurred by the former club(amortised over the term of the contract) and whether the contractualbreach falls within a protected period

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Sporting SanctionsSporting Sanctions

•• Sporting sanctionsSporting sanctions– – Players: suspension of 4 months, but also 6 Players: suspension of 4 months, but also 6

months in the case of aggravating months in the case of aggravating circumstancescircumstances

– – Clubs: ban to register new players for two Clubs: ban to register new players for two registration periods. registration periods.

See MEXES and WEBSTER Cases before See MEXES and WEBSTER Cases before DRC and CASDRC and CAS

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Training CompensationTraining Compensation

must be paid when:must be paid when:– a player signs his first contract as a a player signs his first contract as a

professional,professional,– on each transfer of a professional until the on each transfer of a professional until the

end of the season of his 23rd birthday.end of the season of his 23rd birthday.

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TRAINING COMPENSATIONTRAINING COMPENSATION

Clubs from Europe:Clubs from Europe:

First category: 90.000 eurosFirst category: 90.000 euros

Second category: 60.000 eurosSecond category: 60.000 euros

Third category: 30.000Third category: 30.000

Fourth category: 10.000 eurosFourth category: 10.000 euros

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Solidarity MechanismSolidarity Mechanism

If a professional is transferred before the If a professional is transferred before the expiry of his contract, any club that has expiry of his contract, any club that has contributed to his education and training contributed to his education and training shall receive a proportion of the shall receive a proportion of the compensation paid to his previous club compensation paid to his previous club

1818

BERNARDBERNARD16 of March 201016 of March 2010

““A scheme providing for the payment of A scheme providing for the payment of compensation for training where a young player, compensation for training where a young player, at the end of his training, signs a professional at the end of his training, signs a professional contract with a club other than the one which contract with a club other than the one which trained him can, in principle, trained him can, in principle, be justified by the be justified by the objective of encouraging the recruitment and objective of encouraging the recruitment and training of young players.training of young players. However, such a However, such a scheme must be actually capable of attaining scheme must be actually capable of attaining that objective and that objective and be proportionatebe proportionate to it, to it, taking taking due account of the costs borne by the clubs due account of the costs borne by the clubs in training both future professional players in training both future professional players and those who will never play professionallyand those who will never play professionally (para. 45).(para. 45).

191919

Bosman versus BernardBosman versus BernardSport in so far as economic Sport in so far as economic activityactivity

Free movement of workersFree movement of workers

Restrictions regardless of Restrictions regardless of nationalitynationality

Professional to professionalProfessional to professional

End of (prof.) contractEnd of (prof.) contract

Sport in so far as economic Sport in so far as economic activityactivity

Free movement of workersFree movement of workers

Restrictions regardless of Restrictions regardless of nationalitynationality

Amateur to professionalAmateur to professional

End of (amateur) End of (amateur) contract/trainingcontract/training

2020

JurisdictionJurisdiction

Civil court for employment-related disputesCivil court for employment-related disputesBut FIFA for But FIFA for – Disputes between clubs and players in relation to the Disputes between clubs and players in relation to the

maintenance of contractual stability if there has been an ITC maintenance of contractual stability if there has been an ITC Request Request

– Disputes related to Training Compensation (Art. 20) and Disputes related to Training Compensation (Art. 20) and Solidarity Mechanism Solidarity Mechanism

– Employment-related disputes between a club and a player that Employment-related disputes between a club and a player that have an “international dimension”.have an “international dimension”.

unless an independent national arbitration tribunal (fair proceedings unless an independent national arbitration tribunal (fair proceedings and equal representation of players and clubs)and equal representation of players and clubs)

2121

Judicial BodiesJudicial Bodies

Players’ Status CommitteePlayers’ Status Committee

Dispute Resolution Chamber (now also a Dispute Resolution Chamber (now also a single judge)single judge)

CASCAS