Yesterday, UEFA published the very
much-expected settlements implementing its Financial Fair Play (FFP)
regulations. Today, we address tomorrow’s challenges for FFP, we offer five,
more or less realistic, scenarios sketching the (legal) future of the FFP
regulations.
Scenario
1 : Happily ever after
We enter the brave new world of FFP. The settlements are not contested and Dupont’s EU law crusade sinks
into oblivion. Meanwhile, the Qatari owners of PSG come up with a new marketing
concept, the club recruits four locally trained players and wins the Champions
league fielding the same starting team 14 times.[1] Thanks
to FFP, in 2015, nobody is losing money anymore[2],
Cristiano Ronaldo’s transfer to PSG for EUR 30 Mio. is by far the most expensive one
and Arsenal’s coach Wenger feels rich for the first time in his career. No new FFP
violation is registered, except for Shakhtar Donetsk, which messed up its
financial accounts due to the move back to the rubble.
Scenario
2: Here we go again
FFP ends here for 2014, but history repeats
itself in 2015. Clubs are still losing money and appear to fail to comply with
the agreed settlements.[3] However,
Manchester City and PSG have recourse to new innovative marketing contracts to
turn their losses into profits.[4] To
this end, the PSG squad members are named official ambassadors of the State of
Qatar and their wages are covered by the Qatari state. The nightmare continues for
Platini, who is stuck between a rock and a hard place. On one side he counts on
Qatar’s vote and influence to win the FIFA presidency in June 2015, on the
other he needs to defend his credibility in the eye of the German austerity
hawks. The procedure is delayed until July, at which point the cases are
referred to the adjudicatory chamber.[5] Both
clubs are found in breach again, the chamber imposes a EUR 100 Mio. fine and Champions
League squads are reduced to 18 players.[6]
Scenario
3: Settlements are not enough
Wenger is outraged! Fining PSG and Manchester
City is a bit like fining a central bank: they’ll just print more money. 2014 was
supposed to be the year his side would eventually get to play the Champions
League without having to go through the preliminary rounds. Thus, Arsenal,
backed by Everton, decides, on the 25 May 2014, to contest the settlements in
front of the Adjudicatory Chamber.[7]
Olympique de Marseille, always keen on fighting PSG on any turf, also appeals
the settlement. However, in a final decision, the Adjudicatory Chamber dismisses
the complaints. Far from abandoning their quest for justice, the clubs decide
to refer the decision to CAS[8],
where Everton, Arsenal and Marseille obtain a re-devaluation of the controversial
sponsoring agreements. CAS hands out a two-year ban on transfers for both
clubs, but comes short of kicking them out of the Champions League.[9] As
usual, the final appeal to the Swiss Federal Tribunals is a waste of time: Arsenal
will have to go through the preliminary round...again.
Scenario
4: My name is Dupont, Jean-Louis Dupont
All the parties agree with the settlements
proposed, FFP seems to be heading for a smooth run. All, but one. Belgian lawyer
Jean-Louis Dupont, secretly backed by wealthy clubs, challenged FFP in front of the Belgian Courts and the
European Commission. He claims, loud and clear, that FFP is a restriction of EU Free Movement
and Competition Law. In 2018, after 4 years of protracted litigation, the Court
of appeal of Bruxelles finally decides to refer the matter to the Court of
Justice of the EU in Luxembourg.[10] Meanwhile,
the European Commission has also been enquiring on a putative infringement of EU
competition law, but the new Commissioner for Competition Law, former French
minister Pierre Moscovici, freezes the final decision after a phone call with Platini.
On the 15 December 2020, the Court, in its instantly famous Striani
judgement[11], considers FFP a clear
restriction on EU free movement and competition law. In spite of the
specificity of sport, its proportionality cannot be warranted. However, the
judgement has no retroactive effect and both the Court and Advocate General
considered that a better system could have been worked out. As soon as the
ruling is known, UEFA enters in résistance:
Platini calls up Sarkozy (by then old-new President of France), who, in a
moment of rage, decides to leave the EU.
Scenario
5: The Reality Check
The FFP settlements will stand as they are; it
is rather unlikely, though possible, that any affected party will raise an
objection against them. PSG and Manchester City will not recruit any big
players unless they sell big, but will most likely focus on getting decent
locally-trained players on-board for the Champions League bench. The 2015 FFP edition
will probably feature a replay of the current edition. We do not see, at least
for PSG, any chance that it could accrue its revenues (except very creatively),
in order to meet the target of a maximum EUR 30 Mio deficit. The main conundrum
for the 2015 FFP process will be to design credible sanctions for a recidivist.
On the EU law front, the process will take a lot of time. Regarding the Belgium
Courts, any first instance decision will be appealed all the way to the highest
Court and will undoubtedly end up in a very time-consuming procedural ping-pong
with the Court of Justice of the EU (earliest final decision not before 2019-2020).
The EU competition law complaint launched with the European Commission might be
quicker to unfold, but will most likely be a forum for re-negotiating the FFP
rules rather than to abolish them altogether (the transfer system overhaul
at the turn of the century could serve as a model). On a final note, Wenger is surely
disappointed by the apparent leniency of the sanctions, but for once he might be
able to throw a bit of his weight around on the transfer market.