Does Fifa have the authority to override national laws? It says it does

 

 

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By Tony Attwood

Fifa’s aim, it says, it is “to protect the integrity of football and prevent abuses” and it started on a grand project under this headline in 2020.   

This is the project now being challenged in German courts with the case claiming that the new Fifa “Football Agent Regulations” published in January this year, are contrary to EU law.

The details of the case are quite complex but the overall point in the case is simple: can Fifa issue edicts that tell countries what they can and cannot do in relation to the organisation of football at all levels?

It is generally accepted that in some sports in some countries there is an individual controlling body.  And it is accepted beyond that, that there should be a single body controlling the work of all the individual controlling bodies.   In football this is Fifa.  That, we might note, is not the case in all sports – boxing for example has a multiplicity of bodies controlling the sport.  But where historically one body has arisen, its dominance of the market is accepted.

But a second question then arises: how far does the dominance go?  And this is the issue now as Fifa has demanded that all football transfers must go through its HQ and its bank.  This would appear to be an unnecessary restriction of the work of agents, while being primarily about the aggrandizement and indeed enrichment of Fifa itself.

Fifa gets away with such things because it is Fifa that decides where large events such as the world cup take place, and more to the point, where the money goes.  It appears to be very difficult for any organisation outside Fifa to vet how Fifa’s finances are used.

This is an issue we have pursued before, as for example when the head of Fifa, on finding that his flight from central America back to Switzerland was delayed, hired a private jet at massive expensive to fly back to Switzerland.  He claimed his was for an important meeting – but evidence suggests there was no meeting.  Money was used for that flight that could have been used for building all-weather pitches in countries lacking such facilities.

But because there is no organisation set up to oversee Fifa, nothing could be done.  And nothing can be done unless a group of powerful countries were to unite to demand changes, and leave Fifa if these do not happen (setting up a new controlling body en route).

Thus as long as Fifa has the power to decide where world cups are played, Fifa has a trump card to lay down against any suggestion for change.

And this is why it has been so taken aback by the rising number of objections to the new regulations controlling transfers (including the ones saying that all transfer money must first be lodged first within the Fifa bank).   Indeed if you had a lot of savings, would you put it in a bank run by Fifa, and where Fifa control how much the bank charges are?)

The FA, always ready to bow down to Fifa in the hope of winning another lucrative tournament, have no such concerns and will always do Fifa’s bidding. But Germany’s football authorities are not so willing to hand over the cash, or the control of the rules.  Authorities in the Netherlands have also asked the courts to stop Fifa’s actions.

To summarise what is a complex set of changes, one might say that Fifa is taking on the agents – and not for the first time.  Player agents are powerful in the game and the moment these new regulations were first drafted agents were up in arms launching their own legal challenges and the European courts have been busy handing down their rulings.  

(This situation with Fifa also explains why the Premier League set itself up apart from the rest of football in England, and is pursuing its case against Manchester City on its own – it seemingly does not trust either Fifa or the Court of Arbitration in Sport, and so is keeping everything in house). 

Switzerland also has doubts and there are temporary measures in place to stop the implementation of the new rFifa ules until the commission that oversees competitive sports has reported back.

The issue is now with the European Court of Justice, which is still considering the case and the key argument being put is simple: Fifa cannot regulate the work of agents because it is not a state.  Only states and the organisations that draw their authority from the state (for example regional authorities and councils) can legislate.

This is a part of competition law which is utterly central to the European Union’s which stops restrictions on free trade and competition, including stopping dominant organisations from abusing their power by seeking to control others.   Which by and large is a pretty good description of what Fifa does.

Of course the agents are looking after their own interests, as they know that if Fifa were to get its way it would limit the percentage of transfer monies that agents could take, which would reduce their income, probably reduce the number of agents, and so reduce competitiveness.

Fifa’s arguments in such cases as these generally run along a simple line: that football is different, because of the nature of football competitions.   Clearly one cannot set up a new club and have it take on Premier League clubs – that club would have to climb through the pyramid of leagues.   This is obviously a restriction of commercial freedom,  but it is allowed in order to protect the integrity of football competition as established over the decades.  

Now Fifa tend to use this “sport is different argument” to justify the existence of itself.  But of late it has been argued that this argument can be extended to give it the right to control every aspect of football, including the transfer market.

In fact this is the Fifa agenda – to control all of football in secrecy without any right to challenge other than through the somewhat discredited court for arbitration in sport.  It is good to see some parts of football are willing to stand up against it, even if England is now.