Yesterday, the press revealed
that the European Commission decided to reject the complaint filed by
Jean-Louis Dupont, the former lawyer of Bosman, on behalf of a player agent
Striani, against the UEFA Financial Fair Play (FFP) Regulations. The rejection
as such is not a surprise. The Commission had repeatedly expressed support of
the principles underlying the UEFA FFP. While these statements
were drafted vaguely and with enough heavy caveats to protect the Commission
from prejudicing a proper legal assessment, the withdrawal of its support would
have been politically embarrassing.
Contrary to what is now widely assumed, this decision
does not entail that UEFA FFP regulations are compatible with EU Competition
Law. UEFA is clearly the big victor, but the legal reality is more complicated
as it looks.
UEFA, which most probably leaked the decision
to the press, must have been enchanted by it. At a time when Europe is buzzing
with rumours on the potential illegality of the UEFA FFP Regulations, it is
fully vindicated by this decision. Indeed, at least in the short run, the UEFA
FFP regulations will not be legally threatened anymore. Basically, for the time
being, FFP is here to stay.
The European Commission’s Death Sentence to the Striani
The Commission’s decision to reject the
complaint is less far-reaching than one would think. The decision does not
enter into the substance of the compatibility of the UEFA FFP regulations with
EU Competition law. Rather, the EC has chosen the easy way out of what it must
have perceived as a toxic case, with much political capital to lose for a
single player agent. The elegant way out of a potential mess was to consider
Striani not directly affected by the UEFA FFP Regulations. We can gather from
reports that the Commission argued that Striani as a Player Agent was not
an addressee of the FFP rules and was not substantially affected by them (as he
was claiming only a symbolic euro of damages in front of the Belgian Courts),
thus leaving him with no legitimate interest. Moreover, the fact that the UEFA
FFP Regulations were welcomed by diverse groups of stakeholders (ECA, FIFPro) corroborates
in the eyes of the Commission that there is no interest for it to act ex officio in light of such a consensus.
This decision can now be contested in front of the EU General Court. However,
the European Commission enjoys, in light of its very limited resources, a wide
discretion in deciding which cases deserve to be investigated. Hence, it is
very unlikely that the Court would annul this decision. But is it the end of
the legal war?
Is a Waterloo still possible
After Austerlitz, came the Berezina and finally
Waterloo: the war over the UEFA FFP regulations is far from done. The European
Commission has not pronounced itself on the substantial merit of the claim and
Dupont has still a case ongoing in front of the Belgium Courts. If it goes all
the way up the legal ladder, it will most probably be referred, via the
preliminary reference procedure, to the EU Court of Justice, giving it the
opportunity to address the merits of the case. However, it is obvious that
Player agents are perceived as the dark sheep of the football family. This is not a Bosman-like situation with a player barred from
exercising his job because of a European-wide boycott and rules discriminating
expressly on the ground of nationality. Therefore, we doubt that Striani will
be more successful in front of the Courts. Nevertheless, if the players, for
example via FIFPro, or the clubs decided to go after the UEFA FFP regulations
(for now FIFPro and ECA are officially supporting FFP) it would be a completely
different story. Such a complaint would be difficult to disregard by the Commission.
The Commission is certainly the guardian of
Treaty, but not its interpreter. One would be ill-advised to throw caution to
the wind and assume that the UEFA FFP regulations are definitely compatible
with EU law. The European Commission conveniently avoided deciding on this
matter. But, as Bosman reminded us, the Commission can also err in its
evaluation of EU law’s bite and nothing precludes the Judges in Luxembourg from
assessing the compatibility with EU law in a different way.
UEFA may have won a crucial battle, but there
is still a legal war to fight.