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By Tony Attwood
As we have often noted in the past, it is a fundamental of the Football Association that football is above the law. It makes its own rules and oversees its own justice, it is argued. It is unique, and national lawmakers don’t understand it.
Which it has got away with – until challenged. And now the European Court of Justice has pointed out what most of us have known for a while: football is not above the law. In this case, they have been looking at transfers and decided that the transfer system is “contrary to EU law”.
Now, if the past is anything to go by, the FA and Fifa will say that the courts “don’t understand football” and carry on regardless. And then fall flat on their faces, while desperately trying to reform their archaic systems.
The player we have to thank this time for showing that football – like everything else – is subject to the law of the land, is the ex-Arsenal man Lassana Diarra – he played for us as a stopping off point on his journey between Chelsea and Portsmouth in 2007/8 before eventually playing three seasons with Real Madrid.
In transfer terms, the argument was simple – the concept of freedom of movement within the EU is fundamental. There was also a finding that buying clubs must pay compensate selling clubs if a player breaks a contract, are also against EU law.
And to be clear these are Fifa and Uefa rules that are being shown to be illegal, not just FA or Premier League rules, so the whole of football is affected.
The EU court ruled that these rules reduce the fundamental EU concepts of freedom of movement, particularly for the purposes of employment. The football argument against the EU seems to be the old one that “football is different.” It is not an argument the EU has ever accepted.
The court’s reasoning is that the current rules make transfers a very risky operation for players seeking to move and clubs seeking to buy, and therefore they impede cross-border trade in players, while the openness of borders for the purposes of trade is a fundamental of the EU.
The court also said that the current rules greatly reduce competition between clubs from different EU countries in relation to buying players, through the implementation of technical rules which do not appear to be necessary.
Arguing against this view, Uefa stated that the rules were needed to regularise sporting competitions, which in effect is the old argument that “sport is different” – and is one that the EU courts have shown themselves to be disinclined to accept in the past.
Now, whenever we have one of these cases which Fifa loses, their response is always one that says that basically Fifa won the case and that the court was arguing about tiny technical details which are down to individual football associations to deal with in their regulations. They then rather pompously say that they will look at the decision and then don’t say any more as the rules are changed to meet EU requirements.
Interestingly, the legal team representing Diarra also represented Jean-Marc Bosman in his 1995 case of 1995 which fundamentally changed transfer regulations. That ruling, also played down at the time by the authorities, allowed players working for clubs within the European Union to move to other clubs on a free at the end of their contracts and removed the restrictions on the number of non-national EU players a club could field.
Then as now, the defeated Fifa said the ruling was on “points of detail” which it would “look at”. The transfer system then changed totally.
Indeed then, as now, the Court of Justice severely criticised football regulators for acting as if football was above EU law. And as before, Fifpro – the trade union for most footballers (although many in England continue to be in the PFA) welcomd the ruling, and put out a statement saying, “Fifpro reiterates its willingness to enter negotiations with Fifa and the other social partners in professional football to collectively agree on a new set of rules which is compliant with EU law and respects the rights of players.”
The Chief Executive of the PFA commented that, “As they consider the impact of this ruling, the football authorities need to be making an honest and open assessment of the suitability of their rules and how they sit alongside employment laws. They then need to start making genuine and proactive efforts to work with players and their unions.”
Diarra’s case dates right back to December 2015, when the player started legal action against both FIFA and the Belgian League. Despite all attempts to stop him and the case, he has finally won and now football is once more dragged kicking and screaming into the 20th century. Whether it will ever make it into the 21st, is another matter.
