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’s Austerlitz

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 complaint

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 the press 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 for UEFA?

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.

The first part of this two-part blog examined the new bidding regulations adopted by the IOC and UEFA, and concluded that it is the latter who gives more weight to human rights in its host selection process. This second part completes the picture by looking at FIFA's bidding regulations for the 2026 World Cup. It goes on to discuss whether human rights now constitute a material factor in evaluating bids to host the mega-sporting events organised by these three sports governing bodies.

FIFA: 2026 World Cup

About the host selection process

The United States, Mexico, and Canada together on the one side and Morocco on the other are bidding to host the 2026 World Cup. The bidders must now prepare and submit their Bid Books to FIFA by no later than 16 March 2018, providing the world's governing body of football with information regarding their hosting vision and strategy, the country's political system and economic situation, technical matters, other event-related matters, or human rights and environmental protection.[1] FIFA will then commission a Bid Evaluation Task Force,[2] composed of the chairman of the Audit and Compliance Committee, the chairman of the Governance Committee, one member of the Organising Committee for FIFA Competitions, and certain members of the General Secretariat with relevant expertise, to prepare a written report evaluating each bid. This report will be split into three sections, namely (i) compliance assessment; (ii) an assessment of the risks and benefits of each bid, including the risks of adverse impacts on human rights; and (iii) an assessment of key infrastructural and commercial aspects of each bid, including stadiums, transport infrastructure, organising costs, or estimated media and marketing revenues.[3] The Bid Evaluation Task Force will apply a scoring system that might eventually lead to the exclusion of a bid from the host selection process in the event of its failure to reach a required minimum score.[4] It is critical to note, however, that this scoring system will only be used to evaluate infrastructural and commercial aspects of each bid.[5] In other words, human rights or environmental protection are not subject to this scoring system.

The Bid Evaluation Task Force will forward its report to the members of the FIFA Council who will determine whether or not each bid qualifies to be voted on by the FIFA Congress.[6] While until now the decision on the venue for the FIFA's flagship event has been taken by the Council (formerly the Executive Committee), the host of the 2026 World Cup will be elected for the first time by the members of the Congress.[7] The Congress will meet for this purpose in June 2018 and it may either award the right to host the tournament to one of the candidates or reject all bids designated by the Council.[8] In the latter case, FIFA will launch a new procedure that will culminate with a final decision in May 2020.[9] It is also worthwhile noting that the entire host selection process will be overseen by an independent audit company.[10]

Human rights as selection criteria

A number of human rights requirements could be found across different bidding documents relating to the host selection process for the 2026 World Cup. This section takes a closer look at the content of these requirements. 

First, each member association bidding to host the tournament must undertake to respect all internationally recognised human rights in line with the United Nations Guiding Principles on Business and Human Rights (UN Guiding Principles).[11] Importantly, this commitment covers not only the member association's own activities, but also the activities of other entities that are in a business relationship with the member association, be it for the production of goods or provision of services. In this respect, FIFA acknowledges that ''a significant part of human rights risk may be associated with the activities of third parties''.[12]

Second, FIFA requires that each bidder provide a human rights strategy outlining how it is going to honour its commitment mentioned above.[13] While a similar requirement also appears in the UEFA's bidding documentation for the Euro 2024, FIFA is much more specific in defining the essential elements of this strategy. Accordingly, the strategy shall include a comprehensive report ''identifying and assessing any risks of adverse human rights impacts […] with which the member association may be involved either through its own activities or as a result of its business relationships''.[14] Perhaps the most remarkable aspect of the entire host selection process is the follow-up requirement that this report be complemented by an independent study carried out by an organisation with recognised expertise in the field of human rights.[15] This independent expert organisation will examine to what extent does the national context, including the national legislation, influence the member association's capacity to respect all internationally recognised human rights.[16] As part of their strategy, the bidders should further explain what measures they intend to take in order to mitigate any human rights risks identified in the comprehensive report.[17] Moreover, the strategy should contain information about the implementation of an ongoing due diligence process, the plans for meaningful community and/or stakeholder dialogue and engagement,[18] the protection of human rights defenders' and journalists' rights, or grievance mechanisms.[19]

Third, each bidder must provide a report summarising its ''stakeholder engagement process implemented as part of the development of the […] human rights strategy''.[20] Fourth and last, the government of each country bidding to host the 2026 World Cup shall express its commitment to: (i) respecting, protecting, and fulfilling human rights in connection with the hosting and staging of the tournament; and (ii) ensuring that victims of human rights abuses will have access to effective remedies.[21] To this effect, each of the involved governments is required to sign a separate declaration.

A comparative overview

It remains to be seen whether the new bidding regulations will help reduce the number and severity of adverse human rights impacts linked to mega-sporting events. For the time being, it is essential to identify the strong and weak points of these regulations.

When discussing strengths, FIFA and UEFA come to mind. Both organisations should be applauded for demanding that the bidders pledge to respect and protect internationally recognised human rights independently of the locally recognised human rights.[22] FIFA moreover extends this obligation to the activities of third parties that are in a business relationship with the bidding member association. Both FIFA and UEFA also ask for a human rights strategy that should include some crucial information such as evidence of meaningful consultation with potentially affected communities. Again, FIFA goes one step further by requiring that this strategy be accompanied by an independent expert study.

All three sports governing bodies reserve the right to assign a role to independent human rights experts in evaluating or preparing bids.[23] And while this is in itself commendable, it should be noted that such a role is limited because it does not entail decision-making competences. For instance, the expert institution responsible for developing an independent study in the host selection process for the 2026 World Cup will not have the power to exclude a bid if it ascertains that the national context significantly undermines the member association's capacity to respect internationally recognised human rights. This expert institution will certainly put more pressure on FIFA in the sense that any action contrary to the institution's recommendations will have to be publicly justified by compelling reasons, but FIFA may nevertheless decide to consider a bid even if it entails serious human rights risks. Moreover, it is difficult to understand why only infrastructural and commercial aspects of a bid are subject to the scoring system applied by the Bid Evaluation Task Force. If the main reason for this is the fact that the members of the Bid Evaluation Task Force lack expertise in the field of human rights, then the assessment of human rights aspects should perhaps be left to independent experts only. It would be crucial to give these human rights experts some power to decide whether or not a bid qualifies for the next stages of the host selection process. A greater role for independent human rights experts in evaluating bids to host mega-sporting events could come with the establishment of an independent Centre for Sport and Human Rights in 2018. However, this will probably not affect the host selection processes that are currently underway.

Conclusion 

Including human rights within the criteria for evaluating bids to host mega-sporting events may deter many countries, especially those with a negative human rights record, from launching a bid. However, as Professor John Ruggie makes clear, human rights requirements in bidding regulations for mega-sporting events are not aimed at ''peremptorily excluding countries based on their general human rights context''.[24] Indeed, a country where human rights abuses occur can nevertheless deliver an abuse-free event. To do so, it will need to develop an effective strategy and, if selected, guarantee the implementation of this strategy from day one.

[1]    FIFA, Structure, Content, Presentation, Format and Delivery of Bid Book for the 2026 FIFA World Cup.

[2]    FIFA, Bidding Registration regarding the submission of Bids for the hosting and staging of the 2026 FIFA World Cup, pp. 23-28.

[3]    Ibid. pp. 24-25. See also FIFA, Guide to the Bidding Process for the 2026 FIFA World Cup, p. 7.

[4]    FIFA, Bidding Registration, pp. 25-27.

[5]    Ibid.

[6]    Ibid. p. 31. See also FIFA Statutes, Article 69(2)(d).

[7]    FIFA, Bidding Registration, pp. 31-32. See also FIFA Statutes, Article 69(1).

[8]    FIFA, Bidding Registration, p. 31.

[9]    FIFA, Guide to the Bidding Process, p. 13.

[10]   FIFA, Bidding Registration, pp. 22-23.

[11]   FIFA, Structure, Content, Presentation, Format and Delivery of Bid Book, Section 23 – Human Rights and Labour Standards. In addition to international treaties and instruments mentioned in Principle 12 of the UN Guiding Principles, FIFA concedes that ''the scope […] of internationally recognised human rights may be enlarged to include, for instance, the United Nations instruments on the rights of indigenous peoples; women; national or ethnic, religious and linguistic minorities; children; persons with disabilities; and migrant workers and their families''. See FIFA, Bidding Registration, p. 74.

[12]   FIFA, Structure, Content, Presentation, Format and Delivery of Bid Book, Section 23 – Human Rights and Labour Standards.

[13]   Ibid.

[14]   Ibid.

[15]   Ibid.

[16]   Ibid.

[17]   Ibid.

[18]   The community and/or stakeholder dialogue and engagement should be in line with relevant authoritative standards such as the AA1000 Stakeholder Engagement Process.

[19]   FIFA, Structure, Content, Presentation, Format and Delivery of Bid Book, Section 23 – Human Rights and Labour Standards.

[20]   Ibid.

[21]   FIFA, Overview of Government Guarantees and the Government Declaration, pp. 11-12.

[22]   In this regard, FIFA also notes that ''where the national context risks undermining FIFA's ability to ensure respect for internationally recognised human rights, FIFA will constructively engage with the relevant authorities and other stakeholders and make every effort to uphold its international human rights responsibilities''. See FIFA's Human Rights Policy, para. 7.

[23]   IOC, Report of the IOC 2024 Evaluation Commission, p. 7. UEFA, Bid Regulations for the UEFA Euro 2024, Article 14. As mentioned earlier in this blog, FIFA demands that the bidders put forward a human rights strategy complemented by an independent expert study.  

[24]   John G. Ruggie, For the Game. For the World. FIFA and Human Rights, p. 32.