Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Blog Symposium: Third-party entitlement to shares of transfer fees: problems and solutions - By Dr. Raffaele Poli (Head of CIES Football Observatory)

Introduction: FIFA’s TPO ban and its compatibility with EU competition law.
Day 1: FIFA must regulate TPO, not ban it.
Day 3: The Impact of the TPO Ban on South American Football.
Day 4: Third Party Investment from a UK Perspective.
Day 5: Why FIFA's TPO ban is justified.

Editor’s note: Raffaele Poli is a human geographer. Since 2002, he has studied the labour and transfer markets of football players. Within the context of his PhD thesis on the transfer networks of African footballers, he set up the CIES Football Observatory based at the International Centre for Sports Studies (CIES) located in Neuchâtel, Switzerland. Since 2005, this research group develops original research in the area of football from a multidisciplinary perspective combining quantitative and qualitative methods. Raffaele was also involved in a recent study on TPO providing FIFA with more background information on its functioning and regulation (the executive summary is available here).

This is the third blog of our Symposium on FIFA’s TPO ban, it is meant to provide an interdisciplinary view on the question. Therefore, it will venture beyond the purely legal aspects of the ban to introduce its social, political and economical context and the related challenges it faces. More...






Blog Symposium: FIFA’s TPO ban and its compatibility with EU competition law - Introduction - Antoine Duval & Oskar van Maren

Day 1: FIFA must regulate TPO, not ban it.
Day 2: Third-party entitlement to shares of transfer fees: problems and solutions
Day 3: The Impact of the TPO Ban on South American Football.
Day 4: Third Party Investment from a UK Perspective.
Day 5: Why FIFA's TPO ban is justified.

On 22 December 2014, FIFA officially introduced an amendment to its Regulations on the Status and Transfers of Players banning third-party ownership of players’ economic rights (TPO) in football. This decision to put a definitive end to the use of TPO in football is controversial, especially in countries where TPO is a mainstream financing mechanism for clubs, and has led the Portuguese and Spanish football leagues to launch a complaint in front of the European Commission, asking it to find the FIFA ban contrary to EU competition law.

Next week, we will feature a Blog Symposium discussing the FIFA TPO ban and its compatibility with EU competition law. We are proud and honoured to welcome contributions from both the complainant (the Spanish football league, La Liga) and the defendant (FIFA) and three renowned experts on TPO matters: Daniel Geey ( Competition lawyer at Fieldfisher, aka @FootballLaw), Ariel Reck (lawyer at Reck Sports law in Argentina, aka @arielreck) and Raffaele Poli (Social scientist and head of the CIES Football Observatory). The contributions will focus on different aspects of the functioning of TPO and on the impact and consequences of the ban. More...





The CAS and Mutu - Episode 4 - Interpreting the FIFA Transfer Regulations with a little help from EU Law

On 21 January 2015, the Court of arbitration for sport (CAS) rendered its award in the latest avatar of the Mutu case, aka THE sports law case that keeps on giving (this decision might still be appealed to the Swiss Federal tribunal and a complaint by Mutu is still pending in front of the European Court of Human Right). The decision was finally published on the CAS website on Tuesday. Basically, the core question focuses on the interpretation of Article 14. 3 of the FIFA Regulations on the Status and Transfer of Players in its 2001 version. More precisely, whether, in case of a dismissal of a player (Mutu) due to a breach of the contract without just cause by the player, the new club (Juventus and/or Livorno) bears the duty to pay the compensation due by the player to his former club (Chelsea). Despite winning maybe the most high profile case in the history of the CAS, Chelsea has been desperately hunting for its money since the rendering of the award (as far as the US), but it is a daunting task. Thus, the English football club had the idea to turn against Mutu’s first employers after his dismissal in 2005, Juventus and Livorno, with success in front of the FIFA Dispute Resolution Chamber (DRC), but as we will see the CAS decided otherwise[1]. More...

The aftermath of the Pechstein ruling: Can the Swiss Federal Tribunal save CAS arbitration? By Thalia Diathesopoulou

It took only days for the de facto immunity of the Court of Arbitration for Sport (CAS) awards from State court interference to collapse like a house of cards on the grounds of the public policy exception mandated under Article V(2)(b) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards . On 15 January 2015, the Munich Court of Appeals signalled an unprecedented turn in the longstanding legal dispute between the German speed skater, Claudia Pechstein, and the International Skating Union (ISU). It refused to recognise a CAS arbitral award, confirming the validity of a doping ban, on the grounds that it violated a core principle of German cartel law which forms part of the German public policy. A few weeks before, namely on 30 December 2014, the Court of Appeal of Bremen held a CAS award, which ordered the German Club, SV Wilhelmshaven, to pay ‘training compensation’, unenforceable for non-compliance with mandatory European Union law and, thereby, for violation of German ordre public. More...

SV Wilhelmshaven: a Rebel with a cause! Challenging the compatibility of FIFA’s training compensation system with EU law

Due to the legitimate excitement over the recent Pechstein ruling, many have overlooked a previous German decision rendered in the Wilhelmshaven SV case (the German press did report on the decision here and here). The few academic commentaries (see here and here) focused on the fact that the German Court had not recognized the res judicata effect of a CAS award. Thus, it placed Germany at the spearhead of a mounting rebellion against the legitimacy of the CAS and the validity of its awards. None of the commentators weighed in on the substance of the decision, however. Contrary to the Court in Pechstein, the judges decided to evaluate the compatibility of the FIFA rules on training compensations with the EU free movement rights. To properly report on the decision and assess the threat it may constitute for the FIFA training compensation system, we will first summarize the facts of the case (I), briefly explicate the mode of functioning of the FIFA training compensation system (II), and finally reconstruct the reasoning of the Court on the compatibility of the FIFA rules with EU law (III).More...

The Pechstein ruling of the OLG München - A Rough Translation

The Pechstein decision of the Oberlandesgericht of Munich is “ground-breaking”, “earth-shaking”, “revolutionary”, name it. It was the outmost duty of a “German-reading” sports lawyer to translate it as fast as possible in order to make it available for the sports law community at large (Disclaimer: This is not an official translation and I am no certified legal translator). Below you will find the rough translation of the ruling (the full German text is available here), it is omitting solely the parts, which are of no direct interest to international sports law.

The future of CAS is in the balance and this ruling should trigger some serious rethinking of the institutional set-up that underpins it. As you will see, the ruling is not destructive, the Court is rather favourable to the function of CAS in the sporting context, but it requires a fundamental institutional reshuffling. It also offers a fruitful legal strategy to challenge CAS awards that could be used in front of any national court of the EU as it is based on reasoning analogically applicable to article 102 TFEU (on abuse of a dominant position), which is valid across the EU’s territory.

Enjoy the read! 

Antoine

PS: The translation can also be downloaded at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2561297

 More...




From Veerpalu to Lalluka: ‘one step forward, two steps back’ for CAS in dealing with Human Growth Hormone tests (by Thalia Diathesopoulou)

In autumn 2011, the Finnish cross-country skier Juha Lalluka, known as a “lone-wolf” because of his training habit, showed an adverse analytical finding with regard to human growth hormone (hGH). The timing was ideal. As the FINADA Supervisory Body in view of the A and B positive samples initiated disciplinary proceedings against Lalluka for violation of anti-doping rules, the Veerpalu case was pending before the CAS. At the athlete’s request, the Supervisory Board postponed the proceedings until the CAS rendered the award in the Veerpalu case. Indeed, on 25 March 2013, the CAS shook the anti-doping order: it cleared Andrus Veerpalu of an anti-doping rule violation for recombinant hGH (rhGH) on the grounds that the decision limits set by WADA to define the ratio beyond which the laboratories should report the presence of rhGH had not proven scientifically reliable.

The Veerpalu precedent has become a rallying flag for athletes suspected of use of hGH and confirmed some concerns raised about the application of the hGH test. Not surprisingly, Sinkewitz and Lallukka followed the road that Veerpalu paved and sought to overturn their doping ban by alleging the scientific unreliability of the hGH decisions limits. Without success, however. With the full text of the CAS award on the Lallukka case released a few weeks ago[1] and the new rules of the 2015 WADA Code coming into force, we grasp the opportunity to outline the ambiguous approach of CAS on the validity of the hGH test. In short: Should the Veerpalu case and its claim that doping sanctions should rely on scientifically well founded assessments be considered as a fundamental precedent or as a mere exception? More...

The Pechstein ruling of the Oberlandesgericht München - Time for a new reform of CAS?

Editor's note (13 July 2015): We (Ben Van Rompuy and I) have just published on SSRN an article on the Pechstein ruling of the OLG. It is available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2621983. Feel free to download it and to share any feedback with us!


On 15 January 2015, the earth must have been shaking under the offices of the Court of Arbitration for Sport (CAS) in Lausanne when the Oberlandesgericht München announced its decision in the Pechstein case. If not entirely unpredictable, the decision went very far (further than the first instance) in eroding the legal foundations on which sports arbitration rests. It is improbable (though not impossible) that the highest German civil court, the Bundesgerichtshof (BGH), which will most likely be called to pronounce itself in the matter, will entirely dismiss the reasoning of the Oberlandesgericht. This blogpost is a first examination of the legal arguments used (Disclaimer: it is based only on the official press release, the full text of the ruling will be published in the coming months).More...



A Question of (dis)Proportion: The CAS Award in the Luis Suarez Biting Saga

The summer saga surrounding Luis Suarez’s vampire instincts is long forgotten, even though it might still play a role in his surprisingly muted football debut in FC Barcelona’s magic triangle. However, the full text of the CAS award in the Suarez case has recently be made available on CAS’s website and we want to grasp this opportunity to offer a close reading of its holdings. In this regard, one has to keep in mind that “the object of the appeal is not to request the complete annulment of the sanction imposed on the Player” (par.33). Instead, Suarez and Barcelona were seeking to reduce the sanction imposed by FIFA. In their eyes, the four-month ban handed out by FIFA extending to all football-related activities and to the access to football stadiums was excessive and disproportionate. Accordingly, the case offered a great opportunity for CAS to discuss and analyse the proportionality of disciplinary sanctions based on the FIFA Disciplinary Code (FIFA DC).  More...

Time to Cure FIFA’s Chronic Bad Governance Disease

 After Tuesday’s dismissal of Michael Garcia’s complaint against the now infamous Eckert statement synthetizing (misleadingly in his eyes) his Report on the bidding process for the World Cup 2018 and 2022, Garcia finally decided to resign from his position as FIFA Ethics Committee member. On his way out, he noted: “No independent governance committee, investigator, or arbitration panel can change the culture of an organization”. It took Garcia a while to understand this, although others faced similar disappointments before. One needs only to remember the forgotten reform proposals of the Independent Governance Committee led by Prof. Dr. Mark Pieth. More...

Asser International Sports Law Blog | Compatibility of Fixed-Term Contracts in Football with Directive 1999/70/EC. Part.1: The General Framework. By Piotr Drabik

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Compatibility of Fixed-Term Contracts in Football with Directive 1999/70/EC. Part.1: The General Framework. By Piotr Drabik

Introduction
On 25 March 2015, the Labour Court of Mainz issued its decision in proceedings brought by a German footballer, Heinz Müller, against his (now former) club 1. FSV Mainz 05 (Mainz 05). The Court sided with the player and ruled that Müller should have been employed by Mainz 05 for an indefinite period following his 2009 three year contract with the club which was subsequently extended in 2011 to run until mid-2014. The judgment was based on national law implementing Directive 1999/70 on fixed-term work[1] (Directive) with the latter being introduced pursuant to art. 155(2) TFEU (ex art. 139(2) TEC). On the basis of this article, European social partners’ may request a framework agreement which they conclude to be implemented on the European Union (EU, Union) level by a Council decision on a proposal from the Commission. One of the objectives of the framework agreement,[2] and therefore of the Directive, was to establish a system to prevent abuse arising from the use of successive fixed-term employment contracts or relationships[3] which lies at the heart of the discussed problem.[4] Two clauses enshrined in the framework agreement are of particular relevance to the issue of fixed-term contracts in football, namely, clause 2 which governs the Directive’s scope of application, and clause 5 which concerns measures to prevent abuse. The main questions in this regard are therefore whether fixed-term contracts in football may escape the application of the Directive based on clause 2, or be compatible with it pursuant to clause 5. The present blog post presenting the general European framework for fixed-term contract, will be followed by an in depth case note on the decision in the Müller case.

I. Employment contracts in football and the scope of application of the Directive (clause 2)
The second paragraph of clause 2 names specific types of employment relationships which the Member States, after consultation with social partners, and/or social partners may exclude from the scope of application of the Directive. Clause 2(2) does not contain any explicit provisions which would allow for the possibility of football players’ contracts to be excluded from the scope of the Directive. Also, the wording of the provision indicates that the list of the employment relationships covered by the exception is exhaustive,[5] which in turn precludes the possibility of interpreting the clause in a manner which would accommodate contracts between football clubs and their players.

Clause 2(1), on the other hand, provides that the Directive ‘applies to fixed-term workers who have an employment contract or employment relationship as defined in law, collective agreements or practice in each Member State’. As a result, the definition of ‘worker’ for the purpose of the Directive has no autonomous meaning, but is subject to the national laws of the Member States.[6] Therefore, the manner in which the framework agreement has been drafted opens the possibility for the Member States to exclude some categories of workers from the scope of application of the Directive. It follows, that based on the pure wording of clause 2(1) national authorities could theoretically deprive, inter alia, football players of the protection granted under the Directive by merely classifying them as e.g. service providers.

Despite the autonomy granted to national authorities in this regard, clause 2(1) may not be understood as providing the Member States with unlimited discretion. Recital 17 of the Directive’s preamble clearly states that the Member States are to define some of the terms included in the framework agreement ‘provided that the definitions in question respect [its content].’ Moreover, art. 2 of the Directive stipulates that ‘the Member states are […] required to take any necessary measures to enable them […] to guarantee the results imposed by [the] Directive.’[7] The flexibility granted to national authorities is further limited by the need to ensure the effective implementation of EU-derived rights. The Court of Justice of the European Union’s (CJEU, Court) rulings set the limits to the Member States’ discretion in the implementation of clause 2(1). In this regard, the CJEU ruled in Del Cerro[8] that the Directive is applicable to ‘all workers providing remunerated services in the context of a fixed-term employment relationship linking them to their employer.’[9] The Court also stated that ‘in reserving to Member States the ability to remove at will certain categories of persons from the protection offered by [the Directive] and the [framework agreement], the effectiveness of those Community instruments would be in jeopardy as would their uniform application in the Member States.’[10] Also, in the opinion of Advocate General (AG) Maduro the concept of ‘worker’ for the purpose of the Directive must be interpreted in a way which complies with its objectives.[11]  According to the AG, the Member States should not be allowed to rely on the ‘formal’ or ‘special’ nature of the rules applicable to certain employment relationships in order to exclude them from the scope of application of the Directive.[12] Consequently, excluding a specific group from the benefit of protection afforded by the Directive can only be accepted if the competent national court decides that the nature of the employment relationship concerned is ‘substantially different from that between employees falling, according to national law, within the category of workers’.[13]

A similar reasoning to the one used in Del Cerro has been applied in Sibilio[14] where the Court, relying on recital 17 and the need to preserve the Directive’s effectiveness, ruled that in the light of the objectives pursued by the framework agreement the formal classification by the national legislature cannot rule out that a person must be recognized as a ‘worker’ if such a formality is merely notional, and thus conceals the real employment relationship.[15] Therefore, in determining what constitutes an employment contract or employment relationship under national law or practice, and thus when determining the scope of application of the Directive, the definition of these concepts may not result in an arbitrary exclusion of a category of persons from the protection offered by the Directive.[16] The CJEU leaves it for the national courts to conclude whether a person falls within the definition of a ‘worker’ based on the characteristics of the work conducted and the circumstances in which it is carried out.[17] Moreover, in Fiamingo[18] and Mascolo[19] the CJEU later confirmed that no particular sector is excluded from the scope of application of the Directive.[20]

Even though the issue of who is to be considered as a ‘worker’ pursuant to the Directive does not fall within the competence of the EU, and thus, the definition established for the purpose of the internal market provisions may not be directly applied in the context of the Directive, the autonomous Union concept of ‘worker’ and the case-law of the CJEU provide guidelines and support for the national courts of the Member State. In this regard, the CJEU stated in Lawrie-Blum[21] that ‘the essential feature of an employment relationship […] is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration.’[22] The Court elaborated on the matter in Trojani[23] where it ruled that ‘any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a worker’.[24] It cannot be denied that footballers meet the criteria set out in the case-law. The activity they pursue is genuine, they conduct their work under supervision of others, namely clubs and coaches, and receive, often hefty, remuneration.[25] It is also important to add here that already in Bosman[26] the CJEU provided, first, that the existence of, or the intention to create, an employment relationship is the only requirement necessary for the purposes of the application of EU provisions concerning the free movement of workers, and second, that football players could be regarded as workers for the purpose of (now) art. 45 TFEU.[27] This particular finding has been directly confirmed in Olympique Lyonnais.[28] It is not precluded that such considerations should influence national courts in their findings concerning ‘characteristics’ and ‘circumstances’ of the activity exercised by football players should a question in this regard arise. As a result, it seems unlikely that contracts between footballers and their clubs could fall outside the scope of the Directive.

II. Employment contracts in football and measures to prevent abuse (clause 5)
Due to the fact that the social partners considered that contracts for an indefinite period are the general form of employment,[29] the Directive sets out specific measures which serve to secure one of the Directive’s main goals, i.e. prevention of abuse arising from the use of successive fixed-term employment contracts. In this regard, and pursuant to clause 5, the Member States after consultation with social partners, and/or the social partners, are obliged to establish at least one of the measures provided, i.e., i) objective reasons justifying renewal of fixed-term contracts or relationships; ii) the maximum total duration of successive fixed-term employment contracts or relationships; iii) the number of renewals of such contracts or relationships. This particular obligation exists when there are no equivalent legal measures already in place in the national legal orders. Moreover, in establishing the measures the national authorities are to take into account the needs of specific sectors and/or categories of workers. Since the objective reasons justification is the only measure which could facilitate the maintenance of the current status quo relating to fixed-term contracts in football, it is necessary to focus on this particular provisions.

A. Interpretation of ‘objective reasons’ justification in the CJEU’s case-law
The CJEU has had a chance to rule on the interpretation of clause 5 ‘objective reasons’ on a number of occasions. Consequently, for the purpose of relying on the justification the employer not only needs to be eligible to invoke ‘objective reasons’ defence as provided for under national law, but also the national implementing measure needs to comply with the conditions established in the Court’s case-law. In this regard, the CJEU ruled in Adeneler[30] that the concept of ‘objective reasons’ refers to ‘precise and concrete circumstances characterising a given activity, which are therefore capable in that particular context of justifying the use of successive fixed-term employment contracts.’[31] The Court further elaborated on the matter by providing that ‘[those] circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks […].’[32] As a result, national provisions may not be of a purely formal nature, but must justify recourse to successive fixed-term contracts ‘by the presence of objective factors relating to the particular features of the activity concerned and to the conditions under which it is carried out […].’[33] Thus, ‘a national provision which merely authorises recourse to successive fixed-term employment contracts in a general and abstract manner […]’[34] does not fulfil the criteria. In this regard, the Court added that ‘recourse to fixed-term employment contracts solely on the basis of a general provision of statute or secondary legislation, unlinked to what the activity in question specifically comprises, does not permit objective and transparent criteria to be identified in order to verify whether the renewal of such contracts actually responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose’.[35] Moreover, the CJEU also indicated that national laws which allow for the use of successive fixed-term contracts in the context of employers’ needs which are not of a limited duration, and thus temporary, but de facto ‘fixed and permanent’ will not be compatible with the Directive.[36] The above-mentioned findings of the Court have been confirmed in a number of judgments such as Angelidaki[37]. This case concerned individuals who claimed that their fixed-term contracts with the local authorities, which the latter decided not to extended or renew upon their expiry, should have been recognized as contracts of indefinite period as the work performed was of a ‘fixed and permanent’ nature. Reliance on the criteria provided by the CJEU in Adeneler is also evident in Mascolo in which the Court addressed the issue of compatibility with the Directive of Italian national law on the basis of which teachers recruited in schools administered by public authorities and working as temporary replacement staff were employed under successive fixed-term contracts. A similar issue to the one in Mascolo emerged in Kücük[38] which concerned a clerk in the court office who was employed on a number of successive fixed-term contracts as a replacement for several permanent employees due to temporary leave having been granted to the clerks employed for an indefinite duration. Here again the CJEU referred to the established case-law and clarified that temporary needs of employers also cover the need for replacing employees on leave even in situations where the tasks assigned to fixed-term worker are part of the undertaking’s usual activities.[39] This was the result of the need for replacement staff being of a temporary nature.[40] As the social partners themselves indicated that ‘fixed-term contracts are a feature of employment in certain sectors, occupations and activities which can suit both employers and workers’[41] it is thus necessary to evaluate whether objective reasons for the justification of fixed-term contracts in football might be identified.

B. Existence of ‘objective reasons’ justifying fixed-term contracts in football
With regard to the above, it can be argued that the specific circumstances inherent to the exercise of football as a profession are susceptible to justify the successive use of fixed-term employment contracts. In that respect, uncertainty as to players’ performance has always been an inseparable element of not only football but sports in general. No matter what level of performance a player displays over a particular span of time, it can never be excluded, rather it can be expected with certainty, that a (significant) drop in performance will take place. This concerns especially ‘older’ players, i.e. those in their thirties. It is common knowledge that after reaching a certain age athletes’ physical condition deteriorates, thus making it impossible for them to maintain a steady level of performance, and thus, to contribute to the combined efforts of the team they represent. Furthermore, FIFA transfer rules limit players’ possibility of terminating contracts. Art. 14 of the 2015 Regulations on the Status and Transfer of Players allows for termination to take place where a just cause exists. In this respect, introduction of contracts for indefinite period could open the possibility for players to rely on statutory termination periods in order to dissolve contracts, and thus, to become free agents. Consequently, football clubs, and especially those which focus on youth development, could be deprived of a substantial part of their income from transfer fees. This in turn could, first, limit the incentives for training young players, and second, would make it even easier for the richer clubs to acquire talents with negative consequences on competitive balance in football. Moreover, provision 43.02 of the Regulations of the UEFA Champions League 2015-18 Cycle provides that clubs may only register 25 players for the purpose of playing in the competition. Forcing clubs to sign players on indefinite contracts, combined with a limit placed on the amount of footballers that can be registered, will make it even more challenging for youngsters to enter the first team. Furthermore, as it is usually more difficult for the employer to terminate a contract, football clubs could be (indirectly) forced to keep those footballers who no longer fit the team’s tactics or club’s policy (e.g. focus on youth). In this respect, establishing contracts for an indefinite period as the industry’s standard could again negatively influence the chances of young players signing a contract. Furthermore, clubs need to be able to adjust their squads and establish stable teams in order to effectively compete on both national and international levels, and to retain, attract and satisfy their supporters. In our view, fixed-term contracts, by their very nature, are therefore better suited to address the specific characteristics of football as a sport, and as an industry.

C. Possible obstacles to the application of ‘objective reasons’ justification to contracts in football
Nevertheless, even if it is accepted that successive fixed-term contracts between footballers and their clubs may be justified based on objective reasons, it still remains that the justification does not necessarily apply. First, the Member States are free to choose between the clause 5 measures. Consequently, the very possibility of relying on objective reasons depends on the manner in which the Directive has been implemented by the Member States.[42] Second, national implementing measures must comply with the requirements established by the CJEU. Therefore, the Member States that chose to make use of the objective reasons justification are obliged to establish objective factors on the basis of which the application of the justification will be assessed. A general provision of a purely formal nature which does not provide for such objective factors will not be deemed compatible with EU law. In this regard, the criteria or factors established under national law must be capable of being applied to contracts in football. Consequently, national law implementing clause 5 objective reasons needs to be drafted in a manner which allows football contracts to be considered for the purpose of applying the justification, which might be problematic given the fact that the issue has been largely neglected. Third, it has also been established by the CJEU that national laws which allow for the use of successive fixed-term contracts in the context of employers’ needs which are ‘fixed and permanent’ will not be compatible with the Directive. It would go contrary to the objectives pursued by clause 5, i.e. prevention of abuse arising out of successive fixed-term contracts, to allow renewal of such contracts to cover ‘fixed and permanent’ needs of employers.[43] Therefore, if the ‘needs’ of football clubs are considered to be of such a ‘fixed and permanent’ character, and it may be argued that they are, then reliance on the justification would also be endangered.

Concluding remarks
The ruling of the Mainz court questioned, at least in Germany, the current arrangements whereby contracts for a definite period have been established as the industry’s worldwide standard.[44] Consequently, it cannot be excluded that the judgment will once again feed the never-ending discussion on the impact of European law on sport, the debate on the notion of specificity of sport, and more generally, the boundaries between the European Union’s intervention in sport and the autonomy of sports governing bodies. It is safe to assume that considerable controversies will arise in case the decision of the court in Mainz is upheld at higher instances. This, however, will not be the making of the courts, but to a large extent the result of the issue being neglected for years. After all, the Directive was adopted already sixteen years ago and contains no provisions allowing sport to be exempted from its scope. It follows that based on its wording it must also apply to contracts concluded between footballers and clubs. Even though it is possible to justify the successive use of fixed-term contracts on the basis of objective reasons, this depends on the national implementing measures, which do not necessarily provide for such a possibility or are fit to accommodate football contracts.



[1] Council Directive 1999/70/EC concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP [1999] OJ L 175/43 (Directive)

[2] Annex to the Directive, ETUC-UNICE-CEEP Framework Agreement on Fixed-Term Work (Framework Agreement)

[3] Framework Agreement, recital 14 and clause 1

[4] Clause 1 of the Framework Agreement also mentions a second goal, namely, the improvement of quality of fixed-term work by ensuring the application of the principle of non-discrimination. In this regard, Recital 9 of the Framework Agreement adds that the instrument is to contribute to the improvement of equality of opportunities between men and women

[5] Philippa Watson, EU Social and Employment Law (2nd edn, Oxford University Press 2014) p 241; see also case C-212/04 Konstantinos Adeneler en anderen tegen Ellinikos Organismos Galaktos (ELOG) [2006] ECR I-6057 (Adeneler), para 57

[6] However, the definition of what constitutes a fixed-term employment has an EU definition. See Directive, clause 3(1)

[7] See also art. 288 TFEU; Adeneler, para 68

[8] Case C-307/05 Yolanda Del Cerro Alonso v Osakidetza-Servicio Vasco de Salud [2007] ECR I-7109 (Del Cerro)

[9] Ibidem, para 28

[10] Ibidem, para 29

[11] Del Cerro, Opinion of AG Maduro, para 14

[12] Ibidem, para 15

[13] Ibidem; see also case C-393/10 Dermod Patrick O’Brien v Ministry of Justice [2012] published in the electronic Reports of cases (O’Brien), para 51

[14] Case C-157/11 Giuseppe Sibilio v Comune di Afragola [2012] published in the electronic Reports of cases (Sibilio)

[15] Ibidem, para 49

[16] Ibidem, para 51; see also O’Brien, para 51

[17] Sibilio, para 52

[18] Joined cases C-362/13 REC, C-363/13 REC and C-407/13 REC Maurizio Fiamingo, Leonardo Zappalà and Francesco Rotondo and Others v Rete Ferroviaria Italiana SpA [2014] not yet published (Fiamingo)

[19] Joined cases C-22/13, C-61/13 to C-63/13 and C-418/13 Raffaella Mascolo, Alba Forni and Immacolata Racca v Ministero dell'Istruzione, dell'Università e della Ricerca, Fortuna Russo v Comune di Napoli and Carla Napolitano and Others v Ministero dell’Istruzione, dell’Università e della Ricerca [2014] not yet published (Mascolo)

[20] Fiamingo, para 38; Mascolo, para 69

[21] Case C-66/85 Deborah Lawrie-Blum v Land Baden-Württemberg [1986] ECR 2121

[22] Ibidem, para 17

[23] Case C-456/02 Michel Trojani v Centre public d'aide sociale de Bruxelles (CPAS) [2004] ECR I-7573

[24] Ibidem, para 15

[25] For a more detailed discussion see Stefaan Van den Bogaert, Practical Regulation of the Mobility of Sportsmen in the EU Post Bosman (Kluwer Law International, The Hague 2005) pp 57-59

[26] Case C-415/93 Union royale belge des sociétés de football association ASBL v Jean-Marc Bosman, Royal club liégeois SA v Jean-Marc Bosman and others and Union des associations européennes de football (UEFA) v Jean-Marc Bosman [1995] ECR I-4921

[27] Ibidem, paras 74, 87, 90

[28] Case C-325/08 Olympique Lyonnais SASP v Olivier Bernard and Newcastle UFC [2010] ECR I-2177 (Olympique Lyonnais), para 29; Olympique Lyonnais, Opinion of AG Sharpston, para 38

[29] Framework Agreement, recital 6; see also Adeneler, para 61

[30] See supra note 5

[31] Ibidem, para 69

[32] Ibidem, para 70

[33] Ibidem, para 72

[34] Ibidem, para 71

[35] Ibidem, para 74

[36] Ibidem, para 88

[37] Joined cases C-378/07 to C-380/07 Kiriaki Angelidaki and Others v Organismos Nomarchiakis Autodioikisis Rethymnis, Charikleia Giannoudi v Dimos Geropotamou and Georgios Karabousanos and Sofoklis Michopoulos v Dimos Geropotamou [2009] ECR I-3071 (Angelidaki)

[38] Case C-586/10 Bianca Kücük v Land Nordrhein-Westfalen [2012] published in the electronic Reports of cases

[39] Ibidem, para 38

[40] Ibidem

[41] Framework Agreement, recital 8

[42] See e.g. Fiamingo, para 61

[43] See e.g. Angelidaki, para 103; Angelidaki, Opinion of AG Kokott, paras 106-107;

[44] In this regard art. 18(2) of 2015 FIFA’s Regulations on the Status and Transfer of Players stipulates that ‘[t]he minimum length of a contract shall be from its effective date until the end of the season, while the maximum length of a contract shall be five years. Contracts of any other length shall only be permitted if consistent with national laws’

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