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Interview with Wil van Megen (Legal Director of FIFPro) on FIFPro’s EU Competition Law complaint against the FIFA Transfer System

Editor’s note
Wil is working as a lawyer since 1980. He started his legal career at Rechtshulp Rotterdam. Later on he worked for the Dutch national trade union FNV and law firm Varrolaan Advocaten. Currently he is participating in the Labour Law Section of lawfirm MHZ-advocaten in Schiedam in the Netherlands. He is also a member of a joint committee advising the government in labour issues.

Since 1991 he is dealing with the labour issues of the trade union for professional football players VVCS and cyclists’ union VVBW. Since 2002, he works for FIFPro, the worldwide union for professional football players based in Hoofddorp in the Netherlands. He is involved in many international football cases and provides legal support for FIFPro members all over the world. Wil was also involved in the FIFPro Black Book campaign on match fixing and corruption in Eastern Europe.

On the 2001 agreement between FIFA, UEFA and the European Commission:

What was FIFPro’s role in the negotiations leading to the 2001 agreement with the EU Commission on which the current FIFA Regulations on the Status and Transfers of Players (RSTP) are based?

First the negotiations started between the Commission and FIFA/UEFA. Later on FIFPro joined as the Commission found it necessary to involve the players. From then on FIFPro was at the table and able to have influence. It proved not to be the level of influence we hoped to have.

To what extent was FIFPro (dis)satisfied with the agreement at that time?

The outcome of the negotiations was a compromise but to a certain extent acceptable for FIFPro as it was to improve in principle the situation of players. At that time, it seemed that free movement was accessible for them. Yet, the fact that the Commission did not subsequently evaluate the system - as agreed in 2001 - was disappointing.


On the current complaint: 

Why is FIFPro challenging the FIFA RSTP under EU Competition law? What has changed?

After a short while since 2001 we concluded that the way the informal agreement with the Commission was formulated in the RSTP was not consistent with what had been agreed. The clearest example is the repetition of the protected period after a contract was extended.

The parties agreed on a single protected period after a player signed his first contract with a club in order to preserve the stability of club squads and to allow them to amortize the investments made on acquiring these players. After this period the relation between a club and a player was intended to be a regular labour relation.

On several occasions the Commission confirmed that after the protected period the compensation to be paid in case of premature termination would be calculated based on the residual value of the contract. As the protected period re-starts in case of contract renewal, players never reach this situation. Players who refuse to sign a new contract are regularly side-lined by their clubs in order to force them to sign a prolongation. This is limiting the freedom of movement of players significantly and has substantial anti-competitive effects.

More precisely, are you challenging specific articles of the FIFA RSTP? If so, why do you deem those provisions in particular to have an anti-competitive effect or object?

When evaluating the RSTP internally, FIFPro identified twenty-three key issues on which the transfer system was failing the players. As we decided to lodge a complaint on an EU competition law basis, we picked out the strongest arguments for the purpose of substantiating our complaint. The repetition in the protected period is an example[1].

Could these alleged anti-competitive effects not be justified along the lines of the Wouters test[2] as being inherent to the achievement of legitimate objectives such as competitive balance or contractual stability?

It is important to notice that there is no transfer system in other sports and they seem to work fine. This means that a transfer system is not a necessity as such. The abuses we witness nowadays, especially non-payment of players is a direct consequence of the way the system works. We strongly believe that the restrictive effects are not inherent in the pursuit of any objectives. They certainly are not proportionate to them. FIFPro is convinced that the restrictive aspects of the system do not pass the Wouters test.

What is the rationale for going to the EU Commission and not, for example, to the national courts (or national competition authorities for that matter)?

First of all it was the Commission that initiated the process towards the new regulations in 2001. Now that we see the system failing it seems logical to approach the Commission first. As we are looking at a pan-European problem this forum would be more effective than national proceedings. But in case the complaint does not provide an appropriate result the way to national courts and national competition authorities is still open.

Did you envisage some non-confrontational strategies to change the FIFA RSTP through negotiations? What about using the European social dialogue committee for example?

The initial Social Dialogue meetings started eleven years ago. Although we concluded an autonomous agreement in 2012 we must conclude that the most serious problems for our players have not been solved through this mechanism nor have they been successfully tackled through our participation in the working groups and committees of FIFA and UEFA.

The problem of overdue payables is more serious than ever before. FIFPro feels that more pressure is needed to move things forward. The fact that we lodged the complaint does not mean that we stop negotiating. On the contrary, if our counterparts in the social dialogue are willing to solve the issues we put on the table we would prefer this over a long-lasting legal struggle.

Finally, don’t you think that this complaint could lead to a form of European imperialism? In other words, European institutions, clubs and players dictating the transfer system applied worldwide? Should (and could) FIFA (or UEFA) aim for a different European transfer system instead?

Although we are a global organization we cannot deny the fact that the center of gravity of professional football is in Europe. Moreover, after the Bosman ruling it was obvious that the new FIFA regulations had to be in full compliance with EU-law principles. As these rules apply worldwide this means that EU-principles must be respected around the world. As EU law provides generally more protection to workers than a lot of other legal systems in the world the players benefit from this extraterritorial application. FIFPro does not consider this as imperialism. In fact, we believe that a single system is preferable because of the global character of professional football.

[1] Editor’s note: For more examples see FIFPro’s Executive Summary of the complaint.

[2] Editor’s note: The Wouters test is used for the assessment of the alleged anti-competitive nature of a measure, agreement or concerted practice under Article 101(1) TFEU. According to this test, account must be taken of the overall context of the FIFA RSTP and how it produces its effects. More particularly, account must be taken of its potential legitimate objectives. One must then evaluate whether the restrictive effects on competition are inherent in the pursuit of those objectives and proportionate.

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