"An embarrassment for FIFA": Dr Jan Zglinski interviewed by Frankfurter Allgemeine Sonntagszeitung about Diarra

The Diarra case and its consequences

"Shameful for FIFA"

Will the Diarra case revolutionize the player market? And what does it mean for FIFA? Answers from Jan Zglinski , Associate Professor at the LSE Law School of the 英国伦敦政治经济学院 .

The former French national player Lassana Diarra has won a much-noticed success before the European Court of Justice (ECJ). Europe's top judges consider parts of the transfer regulations drawn up by the International Football Association FIFA to be contrary to European law. Jan Zglinski, Associate Professor at the Law School of the London School of Economics (LSE), provides answers to the crucial questions. He has contributed to the legislative process for the intended regulation of English football through the Football Governance Act as a scientific expert.

Mr. Zglinski, what do you think of the decision that the ECJ made on 4 October on FIFA's transfer regulations?

It is a groundbreaking ruling. At the same time, it is a natural development for all those who deal with European sports law, which began last December with the three judgments published shortly before Christmas.

You mean the Super League decision of the ECJ.

The Super League, International Skating Union and Royal Antwerp cases. The Super League is the procedure that everyone remembers best. And here the ECJ has modified its method of approaching European sports antitrust law. It has deviated from the relatively cautious approach to decisions of the sports federations to a mode in which one looks more strictly at legality. Is the whole thing really in conformity with European law? Does it restrict free competition? Is it proportionate? The opinion of Advocate General Szpunar in the Diarra case from April was no surprise, and the judgment is basically a continuation of the line of jurisprudence. Many in the sports law community had been expecting this since December.

So is it a new Bosman case?

You can probably say that. The effects will be less noticeable in the first weeks and months than in the years after Bosman. At that time, it had also taken six years, until 2001, to find a regulation. But there will be important changes, and they go back to the ECJ. It is a significant ruling.

What points did the ECJ attack? Where does the current FIFA regulations violate European law?

The ECJ is really harsh on the rules. The proceedings specifically revolve around the provisions on early termination of contracts without a valid reason: A player leaves his club before the end of the contract period without a justified reason. The regulations have so far provided for draconian penalties for players and clubs. The player must pay high compensation to the old club, and the new club is jointly and severally liable. A sporting sanction in the form of a transfer ban can then be imposed. 1. FC Cologne recently had this painful experience. In addition, the issuance of the international release certificate can be denied, which is de facto equivalent to a temporary professional ban for the player. FIFA has argued that these regulations are needed to ensure contract stability and the order of football competitions.

Players should not change clubs from one week to the next.

The ECJ accepts this, but makes it clear that the regulations go far beyond what is necessary to achieve the goals. The sanctions are excessive and manifestly disproportionate. This clarity, it must be emphasized, is unusual. The wording shows that the court is extremely critical of the FIFA regulations.

Where, for example?

It starts with the fact that certain core terms such as the existence or absence of a valid reason are not defined in more detail in the FIFA regulations. Then the provisions for calculating the compensation are unclear. The Court emphasises that certain calculation criteria provided for by FIFA are never applied in practice. That the football associations have far too much discretion in their decisions here. In addition, there are the deterrent sanctions against the players and clubs. That the player cannot temporarily register with the new association if the release certificate is denied. For FIFA, all this is shameful. The ECJ is basically saying: You are not doing justice to your task of regulating world football.

However, the judges recognize the regulation of the transfer market as a core task of FIFA.

In principle, the ECJ expresses no doubt that FIFA, as a private-law organisation, is allowed to regulate football. This is a confirmation of the Super League case law and will certainly provide relief in Zurich. What FIFA will like less: The ECJ makes it clear that associations do not have a special role when it comes to implementing employee protection in football. In principle, this is a public task. In addition, the many regulatory deficits that currently exist in football run like a red thread through the ruling. The associations issue unclear, disproportionate rules that do not always have the well-being of the players in mind and, to make matters worse, are not even consistently enforced. Football must be reformed.

Hamburg-born Jan Zglinski has written several scientific articles on the "Super League" proceedings about possible competition for the Champions League.

Private

Whose task is that then? FIFA will say: This is our task. We are adapting our regulations. UEFA, the European governing body, did the same after the Super League decision.

From FIFA's press release on the verdict, you can hear that one or two paragraphs have to be reworded, and that's it. I think FIFA would be well advised to think more carefully about the ECJ's criticism. Yes, it is about certain parts of the regulations that deal with contract termination without reason. But we can expect further proceedings on other aspects of the transfer issue. What FIFA should therefore do is to consider how it can create sustainable regulation for players and clubs. And there are various possibilities.

Which one?

If FIFA regulates itself, the big risk is that there will be new legal disputes. This path is now so clearly laid out that players, perhaps also clubs, will attack other aspects of the regulations. So one possibility would be to agree on a collective agreement with the players. The players' union FIFPRO would like to talk to FIFA about this. The model is known from American professional sports, most recently a very progressive new collective agreement was passed for the women's league. The advantage for FIFA would be that a collective agreement would make the regulation antitrust-proof. If FIFA does not want to go down the path of the collective agreement, there is still the possibility of a regulation on European legislation. Here in the UK, there has been a big debate about the creation of a football authority for a few years now. The old government initiated this, the new government promised a corresponding law. Something like this could also be achieved at EU level. Standards can then be influenced via the so-called "Brussels effect". I see this as a sensible alternative option that European politicians should consider here.

Why do you think that something like this works better under political influence than without political influence, especially in times when the EU has to serve as a bogeyman throughout Europe?

FIFA, UEFA and many national associations simply do not manage to regulate the sport properly. This raises the question: Who can do that? In the UK, we get the Football Act, which sets good governance standards. However, many states do not dare to do so because they fear being punished by the associations on the grounds that it is a political intervention. Who will do it then? An international solution is also not in sight. Switzerland, where the international federations reside, has a laissez-faire approach when it comes to sports regulation. In this situation, alternatives are needed. The EU is more immune to associations because it cannot be excluded from a World Cup or European Championship, and is already regulating football more and more through its jurisdiction. For me, it presents itself as an actor who can achieve a lot here.

This would lead to vehement protests from the associations, which will emphasize their autonomy. In terms of the collective agreement, they will also doubt the mandate of FIFPRO, of which the German players' representation VdV is not a member. If neither one nor the other path is taken – what will happen in the winter, next summer in the transfer business?

In the background, there will probably be a wave of new proceedings that we have not seen before. FIFA is certainly aware of this. It will, I assume, create a new regulation as soon as possible. The time until the winter is short, but it should be possible until the summer transfer window. After the Super League proceedings, it took half a year for UEFA to make improvements. The trick is that many European law experts believe that the new regulation is also contrary to European law. This could also happen with the transfer regulations. It is understandable that FIFA wants to avert criticism. But it is in their interest to create a regulation that is sound under European and antitrust law.

For the time being, who do you see as having an economic advantage?

Either way, players are certainly the big beneficiaries of the proceedings. It will be easier to leave a club before the end of the contract period and join a new club. This strengthens the negotiating power and autonomy of players. Which doesn't mean that football is now sinking into chaos. The ECJ has made it clear that transfer periods, for example, are still permitted. Also, players are not allowed to change during a season, but the rules must be relaxed. In the end, this will benefit the players.

What does that actually mean for cases like that of 1.

The ECJ did not say that there should be no regulation prohibiting active poaching of players. There will probably be further restrictions in this regard. They will only contain more proportionate sanctions and more demanding rules of evidence. And yet: All this will make player transfers easier and keeping players more difficult. This may make it more difficult for smaller clubs to employ good players for a long time or at least to benefit financially from them in the end. Clubs that have been affected so far, such as 1 FC Cologne, may now be able to assert cartel damage claims under certain circumstances.

Does the ECJ judge the mercantile side of the sports business like any other employer-employee relationship?

Football is moving one step closer to normal labour law. But I would like to emphasise that there are still significant differences between the employment relationship of a professional and, for example, the employment relationship that I have as a university employee. Even in a reformed transfer system, according to Diarra, there will be restrictions for footballers that go far beyond what we know as scientists, journalists or craftsmen. The transfer periods are a big point. We are always allowed to sign a new employment contract, not just for a few weeks in summer or winter. We are allowed to change employers and in most cases we are not punished for it. The relationship between professional footballer and club is brought a little closer to a proper employment relationship by the ruling.

The interview was conducted by Christoph Becker. "Shameful for FIFA"