Almost 20 years ago, the President of UEFA, Lennart Johansson, claimed that the European Union was trying to destroy club football; this, in response to the controversial Bosman ruling.
Now retired, Jean-Marc Bosman was only 26 in 1990 when his contract with RFC Liege expired. He wanted a transfer to Dunkerque but the French club refused to pay the transfer fee of around 18m. Bosman took his case to the Court of Justice of the EU and the landmark ruling set an important precedent – that a footballer was entitled to a free transfer at the end of his contract, provided the transfer was within the EU. The aftermath of the Bosman ruling was brutal, with Johansson warning that “the process will create a mess.”
When the Meca-Medina ruling initially came out, establishing the primacy of EU law over sports federations, UEFA stated that “without question, the final judgment is unsatisfactory”, suggesting that the EU had opened floodgates to cases about the amplified ‘disproportionate’ effect of sports rules.
L-R: Michel Platini, José Manuel Barroso, Androulla Vassiliou (source)
Surprisingly enough however, UEFA and the EU signed a three year “cooperation agreement” (found here) last month, aimed at structured cooperation in key policy areas. Negotiated mainly in secret, it is one of the final acts of Jose Manuel Barroso as President of the European Commission, whilst Michel Platini’s second four-year term as President of UEFA will end next year. The areas of cooperation between the two organisations include: corruption, match fixing, financial instability, doping, violence and discrimination.
These are clearly issues that pose a significant threat to football today. But it is important to actually look at the consequences of this agreement. One would assume that it would grant some sort of power to the EU to impose governance standards. On the contrary, it seems that the Commission concedes substantial political points to UEFA, whilst only securing the promise of UEFA’s collaboration in the European Week of Sport.
The fact that this agreement is actually a decision means that according to Article 288 TFEU, it is “binding in its entirety” – in theory it is capable of giving rights to UEFA, but the agreement itself states that it “does not create rights or obligations”. The agreement does however give a pass to the Financial Fair Play (FFP) regulations, which are incompatible with EU competition law (specifically, Article 101 TFEU – further discussion on the topic found here), by stating that FFP contributes to the “sustainable development” of sport in Europe. It also in a way legitimises the Court of Arbitration for Sport (CAS), in article 2.14 of the agreement, which states that “arbitration is an important voluntary tool for settling disputes in sport”. The CAS is not actually a court of law, and its legitimacy derives from the voluntary nature of arbitration – but is it really the most appropriate place for the protection of fundamental rights?
Was it necessary for the EU to negotiate this agreement? In essence it is nothing more than a political farce. UEFA is not a representative body – there is no real institutional voice for clubs, fans and players. Surely it would be more beneficial for UEFA to negotiate agreements with organisations such as FIFPro, the representative organisation for professional players, especially if the aim is to protect the fundamental rights of athletes. At the very least the Commission should have ensured that it had some kind of a say in the UEFA policies which may be in conflict with EU law. It seems to me that this whole agreement was wholly unnecessary and only serves to undermine the primacy of EU law that Meca-Medina established.