Unfair Play Hits Soccer's Compromised Transfer System - Fordham Intellectual Property, Media & Entertainment Law Journal
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Unfair Play Hits Soccer’s Compromised Transfer System

Unfair Play Hits Soccer’s Compromised Transfer System

European Soccer1 is regarded as one of the most popular sports in the world. Soccer matches and world-wide international competitions draw millions of enthusiastically rowdy spectators into crowded European cafés. South American and Latin American countries revere the art of soccer and gather together in sunny kitchens to engage in this spectators’ extravaganza. Championship soccer games such as the World Cup, the Euro Cup, Copa Libertadores and Copa America, as well as matches from the Italian Serie A, the Liga Española, the English Premier League, the German Bundesliga and even the Japanese J-League have an enormous following.  This makes soccer the most popular sport to have graced televised spectatorship.  Soccer is burgeoning into sport cult fascination but underlying that golden integration of populist interest is a laundry list of political hoopla and unfair trade.

Contemporary football is much more than just a game. Soccer plays an important social role, and has recently developed into a potent and dangerous business weapon. The treacherous transfer of soccer players as property, signifies one of the darkest sides of this sport, granted the lavish lumps of cash involved in such transfers. Since one of the holy principles of football is fair play,2 the rules of law, inter alia, the European Union Law, often intervene in regulating transfer rules in order to ensure that fair play, within the football transfer system, is complied with, since professional all-star soccer is a lucrative economic activity which creates iconic brands. Soccer, as all sports, has its own rules which may be regarded as sources of law. The transfer of players is within FIFA’s3 jurisdiction, governed by the Regulations on the Status and Transfer of Players.4 As far as the EU law is concerned, the TFEU5 provides for the free movement of athletes6 seeking to “Bend it like Beckham” by fashioning their own patented persona in the world of competitive sport.

The landmark case addressing the conflagration of football transfers is the Bosman case7 which was heard in 1995. Jean-Marc Bosman, a Belgian player, who was victorious in this definitive court case at the European Court of Justice against the Belgian Federation, sparked a revolution in how the business of soccer was conducted. In that case, the CJEU confirmed that transfer rules are justified in accordance with the need to maintain a financial and competitive balance between clubs, to support the search for physical talent and to leverage the training of gifted young players.8 However, the CJEU pointed out that the transfer rules did not aid in sustaining a competitive balance between clubs by preventing the richest clubs from appropriating the services of the best players.9

Prior to this seminal case, football clubs were entitled to receive transfer fees for players when they transferred to another club, after the expiration of their contracts. In the Bosman Case, the Court’s verdict held that the prospect of receiving such fees cannot, be either a decisive factor in encouraging recruitment and training of young players nor an adequate means of financing such activities, particularly in the case of smaller clubs and the respective training of young players by smaller clubs.10 Bosman, then a midfielder, effectively won the right for all players to freely transfer their talents as they approached the tail end of their contracts. The current system, reformed by FIFA in 2001, under pressure from the European Commission, was meant to serve as a compromise between the clubs, players’ union, and the game’s governing bodies. The archaic transfer system was partly retained with set “transfer windows,” where players would be allowed to buy out their contracts after a “protected period” had transpired.

Nowadays, the looming question of the compatibility of the post-Bosman football transfer system has reared its head once again with the complaint of FIFPro11 against FIFA which was filed before the European Commission12 in 2015. FIFA faced the players union FIFPro’s legal action to amend the transfer system contending that the current system of transfer fees is uniquely unfair, uncompetitive and an intolerable restriction on the free movement of trade. The move by FIFPro was dubbed “Bosman 2.0,” thus the transfer fee may be conscripted to the annals of soccer history. After all, the transfer fee—or the act of paying a sum of money for the privilege to move a player from club to club has been in existence for over a century. There is endless gossip, ridiculous buy-out clauses, and tedious trademark lawsuits to contend with, which drum up as much drama as the game itself.13

There is no doubt that the rigged transfer system is failing for the soccer players and for the clubs. The average transfer fee for a top player has increased dramatically in the past few years which is evident in the top ten list of the highest transfer fees ever paid by clubs. At the apogee of elite soccer, astronomical transfer sums of less than seven digits have approached extinction, but will the floating money eventually exhaust the inherent grace of this bonanza sport? Ever since, the Chelsea football club was purchased by Russian billionaire, Roman Abramovich, in a super-takeover deal worth $233 Million dollars, the arrival of overseas Oligarchs foreshadowed certain calamity, fueling the collapse of the transfer market and the beauty of fair play.

  1. In the US the game is called ‘soccer.’

  2. FIFA Statutes, Article 4. See, http://www.fifa.com/.

  3. French: Fédération Internationale de Football Association; English: International Federation of Association Football.

  4. The edition in force is of October 2015. Seehttp://www.fifa.com/.

  5. Treaty on the functioning of the European Union (Rome Treaty 1957 as amended by Lisbon Treaty 2007).

  6. Articles 45-48 TFEU, as well as Articles 3(2) of the Treaty on European Union (TEU) and Articles 4(2)(a), 20, 26 TFEU.

  7. Case C-415/93 Union royale belge des sociétés de football association and Others v Bosman and Others [ECLI:EU:C:1995:463].

  8. Ibid, para 105.

  9. Ibid, para 125, 135.

  10. Case C-415/93 Union royale belge des sociétés de football association and Others v Bosman and Others, para 109 [ECLI:EU:C:1995:463].

  11. French : Fédération Internationale des Associations de Footballeurs Professionnels ; English : International Federation of Professional Footballers.

  12. https://www.fifpro.org/en/news/fifpro-takes-legal-action-against-fifa-transfer-system.

  13. https://www.fifpro.org/en/news/fifpro-takes-legal-action-against-fifa-transfer-system.

Sophia Murashkovsky

Sophia Murashkovsky is an LL.M Student at the Fordham University School of Law, with a concentration in International Law and Justice. Currently, she serves as the President of the International Center for Women Playwrights and is the Producing Artistic Director of The O'Neill Film and Theatrical Foundation, dedicated to permanently closing the gender gap for women working in the film and theater industries.