Editor’s note: Chuck Blazer declined our official interview request but thanks to some trusted sources (the FIFA indictment and Chuck’s testimony) we have reconstructed his likely answers. This is a fictional interview. Any resemblance with real facts is purely coincidental.

Mr Blazer, thank you for agreeing to this interview, especially considering the circumstances. How are you doing?

I am facing ten charges concerning, among others, conspiracy to corrupt and money laundering. But apart from that, I am doing great (laughs)!

It is good to know that you have not lost your spirit. And since you’ve been involved in football, or as you call it soccer, for years could you please first tell us what was your career at FIFA and its affiliates like?

Let me see… Starting from the 1990s I was employed by and associated with FIFA and one of its constituent confederations, namely the Confederation of North, Central American and Caribbean Association Football (CONCACAF). At various times, I also served as a member of several FIFA standing committees, including the marketing and television committee. As CONCACAF’s general secretary, a position I proudly held for 21 years, I was responsible, among many other things, for negotiations concerning media and sponsorship rights. From 1997 to 2013 I also served at FIFA’s executive committee where I participated in the selection process of the host countries for the World Cup tournaments. Those years at the helm of world soccer were truly amazing years of travel and hard work mainly for the good of the beautiful game. I might add that I even managed to document some of my voyages on my blog. I initially called it “Travels with Chuck Blazer” but Vladimir (Putin) convinced me to change the name to “Travels with Chuck Blazer and his Friends”. You should check it out.

Sure, but you ended up facing corruption and tax fraud charges in the US. What happened?

Concerning the charges I am currently facing, I pleaded guilty to participating in a conspiracy to corrupt FIFA and its related constituent organizations through various bribery schemes. In addition, I acknowledged taking part in money laundering process, violation of certain financial reporting laws, and tax evasion. But please keep it quiet. My family was devastated when they heard about this. After all, they know me as a kind-hearted and giving type, especially if you consider that, given my appearance, I’m always Santa Claus when Christmas time is around.

Concretely, around 1992 and together with other representatives of the soccer world, I agreed to accept a bribe in connection with the selection of the host nation of the 1998 World Cup. Together with other FIFA executive committee members I also accepted illegal payments concerning the selection of South Africa as the 2010 World Cup host. Simultaneously, since approximately 1993, still with the same bunch of soccer executives, I accepted bribes connected to the award of broadcasting and other rights to the 1996, 1998, 2000, 2002 and 2003 Gold Cup, a tournament analogue to the Copa América, featuring member associations of CONCACAF.

I know it’s wrong. But at FIFA a lot of people were doing it and it was just a common practice at that time. Money was flowing in my bank accounts and it felt right. We were working so hard to organize those tournaments, you know.

How come the US authorities’ ended up investigating you and FIFA?

I am not completely sure. When I testified back in 2013 the judge indicated that FIFA and its attendant or related constituent organizations were identified as a RICO enterprise, that is, a Racketeering Influenced Corrupt Organization if I remember correctly. I was terrified, it sounded very intimidating at first. Now I guess I got used to the sound of it. I am even thinking about calling my next cat Rico (laughs). I also recall that the Department of Justice’s involvement in the case was due to the fact that we used the US financial system to funnel the money. In hindsight, it was a very bad idea.

Could you give us some more details on how the corruption mechanism actually worked in practice?

In general terms there were media and marketing rights to be sold. Those rights, and often their extensions, were awarded in exchange for bribes, sometimes via intermediaries. The sports marketing companies engaged in the schemes were then able not only to profit from the acquired rights themselves, but also to accept illegal payments for passing on some of those rights to sponsors.

(Long pause) Take for instance Copa Libertadores. The tournament developed and gained popularity which sparked sports marketing companies’ interest in acquiring marketing rights to the competition. Around 2000 an entity affiliated with one of the sports marketing companies was awarded sponsorship rights for the tournaments which took place between 2001 and 2007, with a subsequent renewal of the contract in 2007 and 2012. In the early 2000s Nicolás Leoz, acting as the president of Confederación Sudamericana de Fútbol (CONMEBOL) and a member of its executive committee, sold his support to award the rights to a specific company. What is more, not only did he receive the money, he also gave instructions to forward approximately $2 million to his personal bank accounts, a sum which was owed to CONMEBOL itself based on the awarded sponsorship rights’ contract. The Copa Libertadores was only one of the many affected soccer competitions.

And what were the other tournaments affected?

I am American so please excuse my accent, but besides Copa Libertadores, also Copa América, Copa do Brasil, Gold Cup, and the World Cup qualifiers games. I might also add that corruption affected at least the FIFA 2011 presidential elections, the voting process concerning the hosts of the 1998 and 2010 World Cups, and Brazil’s national team’s sponsorship.

Who would you identify as the main players in the corruption schemes?

Except myself you mean (laughs)? Well, definitely a number of FIFA officials that you hear a lot about in the news lately. I can easily mention a few of my colleagues, like Rafael Esquivel who served as the president of the Venezuelan soccer association and a vice president on the CONMEBOL executive committee. There was also my good friend Eugenio Figueredo, a former president of the Uruguayan soccer association who was a member of FIFA’s executive committee, a vice president at FIFA, a member of various FIFA standing committees, and a vice and then president of CONMEBOL. Surely you know of José Maria Marin and Jeffrey Webb. The former was the president of the Brazilian soccer association, and sat on several FIFA standing committees. The latter was the president of Cayman Islands Football Association and a member of the Caribbean Football Union’s (CFU) executive committee. He was also appointed as the president of CONCACAF and a FIFA vice president. The funny thing is that Webb took these positions in order to clean up after the corruption scandal which led to the resignation of Jack Warner.

Jack Warner, you mean the former president of CONCACAF and the vice president of FIFA?

Correct. But do not forget that he was also the secretary and then a special advisor to the Trinidad and Tobago Football Federation (TTFF), and the president of the CFU. Jack is probably the most corrupt soccer official I ever met.  Personally I did not like him, he just couldn’t get enough. Already in the early 1990s he began exploiting his position for personal gains. In this regard, he did not only treat the assets of the organizations he served as his own, but also actively solicited bribes in connection with for example the 1998 World Cup. Hundreds of thousands of dollars in bribes were also paid to him with regard to the award of commercial rights to several editions of the Gold Cup. Moreover, acting as the president of the CFU and a special advisor to the TTFF he orchestrated the sale of media rights to World Cup qualifying matches which the national members of the CFU decided to sale as a bundle. Following negotiations Traffic, a sports marketing company, acquired the rights to 2002, 2006, 2010, and 2014 World Cup qualifier matches. A substantial part of the value of the contracts concluded by Warner on behalf of the CFU was automatically transferred to accounts under his personal control. He was also involved in a $10 million bribe related to the award of the 2010 World Cup to South Africa. I could go on and on.

You mentioned Traffic. Could you tell us more about it?

Of course. Several of these sports marketing companies were involved, but to my knowledge Traffic was one of the biggest players. This multinational company was based in Brazil and comprised of subsidiaries operating around the globe including the US where it commenced its operations around 1990. The US branch alone was engaged in a number of bribery and fraud schemes in connection with their efforts to obtain various rights from soccer organization and federations in the region. The beneficiaries of these schemes included, among others, Jack Warner, Nicolás Leoz, and Rafael Esquivel. Traffic’s main goal was to expand its operations through developing ties with soccer governing bodies. I remember that in 1991 during Nicolás’ term as CONMEBOL’s president Traffic acquired exclusive commercial rights to three editions of Copa América. Nicolás then threatened to walk away. He claimed that Traffic was about to make a lot of money out of the deal and that it was only fair for him to get his share of the pie. With each of the new editions of the Copa América, Nicolás would demand fresh bribes, a personal business of his which, to my knowledge, went on until 2011. Additional payments were made by Traffic based on their subsequent profits. Esquivel also benefited by requesting bribes in exchange for his ongoing support for Traffic’s position. As I said, bribery at FIFA was often the result of the initiative on the part of its officials. But coming back to Traffic, their involvement is best described in numbers. Out of the twelve bribery schemes I know of, Traffic was involved in nine of them. However, if we disregard the schemes concerning FIFA elections and the voting process for the World Cup hosts the share is nine out of ten. You also need to keep in mind that a former employee of the US branch of Traffic involved in the corruption scheme went on to serve as a general secretary of CONCACAF. On a side note, I think I was a much better general secretary than he ever was. I still receive birthday cards from my former colleagues at CONCACAF.

You stated that several companies were involved. How did they share the rights acquisition between themselves?

I’m not entirely sure about the exact mechanisms involved. What I know, however, is that sometimes conflicts emerged between the different companies seeking to secure contracts for themselves. On other occasions they were able to join forces, for example with the media and marketing rights to Copa América. At first, CONMEBOL entered into a contract with Traffic on the basis of which the latter was awarded the exclusive rights to, among others, the 2015 edition of the tournament, and an option to retain those rights for the next three editions. But in 2010 CONMEBOL signed another agreement, this time with Full Play, on the basis of which Full Play was granted media and marketing rights to several editions of the tournament, including the 2015 edition already sold to Traffic. As you can imagine, Traffic was not happy. They decided to sue CONMEBOL and Full Play. In the end the companies came to an understanding and formed Datisa, a new entity which was to obtain and exploit the commercial rights to the Copa América. In return, Traffic was to shoulder a share of the bribes offered to CONMEBOL officials.

I also recall that there were tensions between Traffic and another company established by a former employee of Traffic who, after bribing Brazilian federation’s officials in order to acquire a contract for the rights to Copa do Brasil, was accused by Traffic’s owner of stealing his business. But they also managed to solve the issue by combining their “efforts” and by sharing the financial burden of the “investments” made to acquire the rights.

And what sums are we talking about?

Not so much, really (laughs). Concerning Datisa the company agreed to pay between $100 and $110 million in bribes to CONMEBOL officials all of whom worked also at FIFA. The FBI told me that they estimated that the “business” generated approximately $150 million in bribes, an amount which may increase if new information come to light. In the end, I did not get so much out of it compared to some of my dear colleagues. Sometimes I think that I should have been more firm during the “negotiations”. For a long time I have been dreaming about having an additional apartment in the Trump Tower. I remember that when I got the first one it almost seemed as it came from some divine intervention.

Wow, that’s a lot. How did they manage to conceal it?

As I already mentioned the “business” was sometimes conducted via intermediaries. Jose Margulies was one of the prominent ones. He was the brother of an old friend of the owner of Traffic, and often used accounts in the names of offshore corporations in order to makes payments on his behalf. In addition, he tried to conceal the bribes by using accounts at Swiss banks, made recourse to currency dealers, destroyed documentation, and discouraged the corrupt soccer officials from using accounts in their own name in order to avoid detection from law enforcement bodies, an advice which was not always taken seriously. People like Nicolás Leoz for example did not hesitate to have sums being paid to their personal bank accounts on the basis of “consulting contracts”. As I already mentioned, Jack (Warner), for his part, concluded a double agreement in the name of the TTFF concerning rights to World Cup qualifier games. He first sold the TTFF’s rights as part of a bundle, and later on sold them again, but this time separately. There was also the famous $10 million paid by South Africa’s authorities to the CFU in order to “support the African diaspora”, a payment which was in fact made in exchange for votes regarding the 2010 World Cup host. This money was diverted back into Jack’s pockets via a number of tricks. Using family members’ accounts was another way of deception. Lately, the business of taking bribes was getting more and more complicated, prompting officials to look for new complex schemes. In fact, the attempts to conceal illegal payments made in connection with the rights to the World Cup 2018 and 2022 qualifiers caused a lot of headache to Jeffrey Webb in his capacity as a high level CFU official. One of the companies with whom Traffic was to make payment to Webb had difficulties finding the right way to discretely transfer the money to him. This led to long negotiations between Webb’s associate and the company’s executives in order to find a clean method to make the outstanding payment.

Thank you so much Mr Blazer for your time and your invaluable insights!

You’re welcome. I am a big fan of the ASSER International Sports Law Blog so anything for you guys.

Introduction
On 25 March 2015, the Labour Court of Mainz issued its decision in proceedings brought by a German footballer, Heinz Müller, against his (now former) club 1. FSV Mainz 05 (Mainz 05). The Court sided with the player and ruled that Müller should have been employed by Mainz 05 for an indefinite period following his 2009 three year contract with the club which was subsequently extended in 2011 to run until mid-2014. The judgment was based on national law implementing Directive 1999/70 on fixed-term work[1] (Directive) with the latter being introduced pursuant to art. 155(2) TFEU (ex art. 139(2) TEC). On the basis of this article, European social partners’ may request a framework agreement which they conclude to be implemented on the European Union (EU, Union) level by a Council decision on a proposal from the Commission. One of the objectives of the framework agreement,[2] and therefore of the Directive, was to establish a system to prevent abuse arising from the use of successive fixed-term employment contracts or relationships[3] which lies at the heart of the discussed problem.[4] Two clauses enshrined in the framework agreement are of particular relevance to the issue of fixed-term contracts in football, namely, clause 2 which governs the Directive’s scope of application, and clause 5 which concerns measures to prevent abuse. The main questions in this regard are therefore whether fixed-term contracts in football may escape the application of the Directive based on clause 2, or be compatible with it pursuant to clause 5. The present blog post presenting the general European framework for fixed-term contract, will be followed by an in depth case note on the decision in the Müller case.

I. Employment contracts in football and the scope of application of the Directive (clause 2)
The second paragraph of clause 2 names specific types of employment relationships which the Member States, after consultation with social partners, and/or social partners may exclude from the scope of application of the Directive. Clause 2(2) does not contain any explicit provisions which would allow for the possibility of football players’ contracts to be excluded from the scope of the Directive. Also, the wording of the provision indicates that the list of the employment relationships covered by the exception is exhaustive,[5] which in turn precludes the possibility of interpreting the clause in a manner which would accommodate contracts between football clubs and their players.

Clause 2(1), on the other hand, provides that the Directive ‘applies to fixed-term workers who have an employment contract or employment relationship as defined in law, collective agreements or practice in each Member State’. As a result, the definition of ‘worker’ for the purpose of the Directive has no autonomous meaning, but is subject to the national laws of the Member States.[6] Therefore, the manner in which the framework agreement has been drafted opens the possibility for the Member States to exclude some categories of workers from the scope of application of the Directive. It follows, that based on the pure wording of clause 2(1) national authorities could theoretically deprive, inter alia, football players of the protection granted under the Directive by merely classifying them as e.g. service providers.

Despite the autonomy granted to national authorities in this regard, clause 2(1) may not be understood as providing the Member States with unlimited discretion. Recital 17 of the Directive’s preamble clearly states that the Member States are to define some of the terms included in the framework agreement ‘provided that the definitions in question respect [its content].’ Moreover, art. 2 of the Directive stipulates that ‘the Member states are […] required to take any necessary measures to enable them […] to guarantee the results imposed by [the] Directive.’[7] The flexibility granted to national authorities is further limited by the need to ensure the effective implementation of EU-derived rights. The Court of Justice of the European Union’s (CJEU, Court) rulings set the limits to the Member States’ discretion in the implementation of clause 2(1). In this regard, the CJEU ruled in Del Cerro[8] that the Directive is applicable to ‘all workers providing remunerated services in the context of a fixed-term employment relationship linking them to their employer.’[9] The Court also stated that ‘in reserving to Member States the ability to remove at will certain categories of persons from the protection offered by [the Directive] and the [framework agreement], the effectiveness of those Community instruments would be in jeopardy as would their uniform application in the Member States.’[10] Also, in the opinion of Advocate General (AG) Maduro the concept of ‘worker’ for the purpose of the Directive must be interpreted in a way which complies with its objectives.[11]  According to the AG, the Member States should not be allowed to rely on the ‘formal’ or ‘special’ nature of the rules applicable to certain employment relationships in order to exclude them from the scope of application of the Directive.[12] Consequently, excluding a specific group from the benefit of protection afforded by the Directive can only be accepted if the competent national court decides that the nature of the employment relationship concerned is ‘substantially different from that between employees falling, according to national law, within the category of workers’.[13]

A similar reasoning to the one used in Del Cerro has been applied in Sibilio[14] where the Court, relying on recital 17 and the need to preserve the Directive’s effectiveness, ruled that in the light of the objectives pursued by the framework agreement the formal classification by the national legislature cannot rule out that a person must be recognized as a ‘worker’ if such a formality is merely notional, and thus conceals the real employment relationship.[15] Therefore, in determining what constitutes an employment contract or employment relationship under national law or practice, and thus when determining the scope of application of the Directive, the definition of these concepts may not result in an arbitrary exclusion of a category of persons from the protection offered by the Directive.[16] The CJEU leaves it for the national courts to conclude whether a person falls within the definition of a ‘worker’ based on the characteristics of the work conducted and the circumstances in which it is carried out.[17] Moreover, in Fiamingo[18] and Mascolo[19] the CJEU later confirmed that no particular sector is excluded from the scope of application of the Directive.[20]

Even though the issue of who is to be considered as a ‘worker’ pursuant to the Directive does not fall within the competence of the EU, and thus, the definition established for the purpose of the internal market provisions may not be directly applied in the context of the Directive, the autonomous Union concept of ‘worker’ and the case-law of the CJEU provide guidelines and support for the national courts of the Member State. In this regard, the CJEU stated in Lawrie-Blum[21] that ‘the essential feature of an employment relationship […] is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration.’[22] The Court elaborated on the matter in Trojani[23] where it ruled that ‘any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a worker’.[24] It cannot be denied that footballers meet the criteria set out in the case-law. The activity they pursue is genuine, they conduct their work under supervision of others, namely clubs and coaches, and receive, often hefty, remuneration.[25] It is also important to add here that already in Bosman[26] the CJEU provided, first, that the existence of, or the intention to create, an employment relationship is the only requirement necessary for the purposes of the application of EU provisions concerning the free movement of workers, and second, that football players could be regarded as workers for the purpose of (now) art. 45 TFEU.[27] This particular finding has been directly confirmed in Olympique Lyonnais.[28] It is not precluded that such considerations should influence national courts in their findings concerning ‘characteristics’ and ‘circumstances’ of the activity exercised by football players should a question in this regard arise. As a result, it seems unlikely that contracts between footballers and their clubs could fall outside the scope of the Directive.

II. Employment contracts in football and measures to prevent abuse (clause 5)
Due to the fact that the social partners considered that contracts for an indefinite period are the general form of employment,[29] the Directive sets out specific measures which serve to secure one of the Directive’s main goals, i.e. prevention of abuse arising from the use of successive fixed-term employment contracts. In this regard, and pursuant to clause 5, the Member States after consultation with social partners, and/or the social partners, are obliged to establish at least one of the measures provided, i.e., i) objective reasons justifying renewal of fixed-term contracts or relationships; ii) the maximum total duration of successive fixed-term employment contracts or relationships; iii) the number of renewals of such contracts or relationships. This particular obligation exists when there are no equivalent legal measures already in place in the national legal orders. Moreover, in establishing the measures the national authorities are to take into account the needs of specific sectors and/or categories of workers. Since the objective reasons justification is the only measure which could facilitate the maintenance of the current status quo relating to fixed-term contracts in football, it is necessary to focus on this particular provisions.

A. Interpretation of ‘objective reasons’ justification in the CJEU’s case-law
The CJEU has had a chance to rule on the interpretation of clause 5 ‘objective reasons’ on a number of occasions. Consequently, for the purpose of relying on the justification the employer not only needs to be eligible to invoke ‘objective reasons’ defence as provided for under national law, but also the national implementing measure needs to comply with the conditions established in the Court’s case-law. In this regard, the CJEU ruled in Adeneler[30] that the concept of ‘objective reasons’ refers to ‘precise and concrete circumstances characterising a given activity, which are therefore capable in that particular context of justifying the use of successive fixed-term employment contracts.’[31] The Court further elaborated on the matter by providing that ‘[those] circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks […].’[32] As a result, national provisions may not be of a purely formal nature, but must justify recourse to successive fixed-term contracts ‘by the presence of objective factors relating to the particular features of the activity concerned and to the conditions under which it is carried out […].’[33] Thus, ‘a national provision which merely authorises recourse to successive fixed-term employment contracts in a general and abstract manner […]’[34] does not fulfil the criteria. In this regard, the Court added that ‘recourse to fixed-term employment contracts solely on the basis of a general provision of statute or secondary legislation, unlinked to what the activity in question specifically comprises, does not permit objective and transparent criteria to be identified in order to verify whether the renewal of such contracts actually responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose’.[35] Moreover, the CJEU also indicated that national laws which allow for the use of successive fixed-term contracts in the context of employers’ needs which are not of a limited duration, and thus temporary, but de facto ‘fixed and permanent’ will not be compatible with the Directive.[36] The above-mentioned findings of the Court have been confirmed in a number of judgments such as Angelidaki[37]. This case concerned individuals who claimed that their fixed-term contracts with the local authorities, which the latter decided not to extended or renew upon their expiry, should have been recognized as contracts of indefinite period as the work performed was of a ‘fixed and permanent’ nature. Reliance on the criteria provided by the CJEU in Adeneler is also evident in Mascolo in which the Court addressed the issue of compatibility with the Directive of Italian national law on the basis of which teachers recruited in schools administered by public authorities and working as temporary replacement staff were employed under successive fixed-term contracts. A similar issue to the one in Mascolo emerged in Kücük[38] which concerned a clerk in the court office who was employed on a number of successive fixed-term contracts as a replacement for several permanent employees due to temporary leave having been granted to the clerks employed for an indefinite duration. Here again the CJEU referred to the established case-law and clarified that temporary needs of employers also cover the need for replacing employees on leave even in situations where the tasks assigned to fixed-term worker are part of the undertaking’s usual activities.[39] This was the result of the need for replacement staff being of a temporary nature.[40] As the social partners themselves indicated that ‘fixed-term contracts are a feature of employment in certain sectors, occupations and activities which can suit both employers and workers’[41] it is thus necessary to evaluate whether objective reasons for the justification of fixed-term contracts in football might be identified.

B. Existence of ‘objective reasons’ justifying fixed-term contracts in football
With regard to the above, it can be argued that the specific circumstances inherent to the exercise of football as a profession are susceptible to justify the successive use of fixed-term employment contracts. In that respect, uncertainty as to players’ performance has always been an inseparable element of not only football but sports in general. No matter what level of performance a player displays over a particular span of time, it can never be excluded, rather it can be expected with certainty, that a (significant) drop in performance will take place. This concerns especially ‘older’ players, i.e. those in their thirties. It is common knowledge that after reaching a certain age athletes’ physical condition deteriorates, thus making it impossible for them to maintain a steady level of performance, and thus, to contribute to the combined efforts of the team they represent. Furthermore, FIFA transfer rules limit players’ possibility of terminating contracts. Art. 14 of the 2015 Regulations on the Status and Transfer of Players allows for termination to take place where a just cause exists. In this respect, introduction of contracts for indefinite period could open the possibility for players to rely on statutory termination periods in order to dissolve contracts, and thus, to become free agents. Consequently, football clubs, and especially those which focus on youth development, could be deprived of a substantial part of their income from transfer fees. This in turn could, first, limit the incentives for training young players, and second, would make it even easier for the richer clubs to acquire talents with negative consequences on competitive balance in football. Moreover, provision 43.02 of the Regulations of the UEFA Champions League 2015-18 Cycle provides that clubs may only register 25 players for the purpose of playing in the competition. Forcing clubs to sign players on indefinite contracts, combined with a limit placed on the amount of footballers that can be registered, will make it even more challenging for youngsters to enter the first team. Furthermore, as it is usually more difficult for the employer to terminate a contract, football clubs could be (indirectly) forced to keep those footballers who no longer fit the team’s tactics or club’s policy (e.g. focus on youth). In this respect, establishing contracts for an indefinite period as the industry’s standard could again negatively influence the chances of young players signing a contract. Furthermore, clubs need to be able to adjust their squads and establish stable teams in order to effectively compete on both national and international levels, and to retain, attract and satisfy their supporters. In our view, fixed-term contracts, by their very nature, are therefore better suited to address the specific characteristics of football as a sport, and as an industry.

C. Possible obstacles to the application of ‘objective reasons’ justification to contracts in football
Nevertheless, even if it is accepted that successive fixed-term contracts between footballers and their clubs may be justified based on objective reasons, it still remains that the justification does not necessarily apply. First, the Member States are free to choose between the clause 5 measures. Consequently, the very possibility of relying on objective reasons depends on the manner in which the Directive has been implemented by the Member States.[42] Second, national implementing measures must comply with the requirements established by the CJEU. Therefore, the Member States that chose to make use of the objective reasons justification are obliged to establish objective factors on the basis of which the application of the justification will be assessed. A general provision of a purely formal nature which does not provide for such objective factors will not be deemed compatible with EU law. In this regard, the criteria or factors established under national law must be capable of being applied to contracts in football. Consequently, national law implementing clause 5 objective reasons needs to be drafted in a manner which allows football contracts to be considered for the purpose of applying the justification, which might be problematic given the fact that the issue has been largely neglected. Third, it has also been established by the CJEU that national laws which allow for the use of successive fixed-term contracts in the context of employers’ needs which are ‘fixed and permanent’ will not be compatible with the Directive. It would go contrary to the objectives pursued by clause 5, i.e. prevention of abuse arising out of successive fixed-term contracts, to allow renewal of such contracts to cover ‘fixed and permanent’ needs of employers.[43] Therefore, if the ‘needs’ of football clubs are considered to be of such a ‘fixed and permanent’ character, and it may be argued that they are, then reliance on the justification would also be endangered.

Concluding remarks
The ruling of the Mainz court questioned, at least in Germany, the current arrangements whereby contracts for a definite period have been established as the industry’s worldwide standard.[44] Consequently, it cannot be excluded that the judgment will once again feed the never-ending discussion on the impact of European law on sport, the debate on the notion of specificity of sport, and more generally, the boundaries between the European Union’s intervention in sport and the autonomy of sports governing bodies. It is safe to assume that considerable controversies will arise in case the decision of the court in Mainz is upheld at higher instances. This, however, will not be the making of the courts, but to a large extent the result of the issue being neglected for years. After all, the Directive was adopted already sixteen years ago and contains no provisions allowing sport to be exempted from its scope. It follows that based on its wording it must also apply to contracts concluded between footballers and clubs. Even though it is possible to justify the successive use of fixed-term contracts on the basis of objective reasons, this depends on the national implementing measures, which do not necessarily provide for such a possibility or are fit to accommodate football contracts.

[1] Council Directive 1999/70/EC concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP [1999] OJ L 175/43 (Directive)

[2] Annex to the Directive, ETUC-UNICE-CEEP Framework Agreement on Fixed-Term Work (Framework Agreement)

[3] Framework Agreement, recital 14 and clause 1

[4] Clause 1 of the Framework Agreement also mentions a second goal, namely, the improvement of quality of fixed-term work by ensuring the application of the principle of non-discrimination. In this regard, Recital 9 of the Framework Agreement adds that the instrument is to contribute to the improvement of equality of opportunities between men and women

[5] Philippa Watson, EU Social and Employment Law (2^nd edn, Oxford University Press 2014) p 241; see also case C-212/04 Konstantinos Adeneler en anderen tegen Ellinikos Organismos Galaktos (ELOG) [2006] ECR I-6057 (Adeneler), para 57

[6] However, the definition of what constitutes a fixed-term employment has an EU definition. See Directive, clause 3(1)

[7] See also art. 288 TFEU; Adeneler, para 68

[8] Case C-307/05 Yolanda Del Cerro Alonso v Osakidetza-Servicio Vasco de Salud [2007] ECR I-7109 (Del Cerro)

[9] Ibidem, para 28

[10] Ibidem, para 29

[11] Del Cerro, Opinion of AG Maduro, para 14

[12] Ibidem, para 15

[13] Ibidem; see also case C-393/10 Dermod Patrick O’Brien v Ministry of Justice [2012] published in the electronic Reports of cases (O’Brien), para 51

[14] Case C-157/11 Giuseppe Sibilio v Comune di Afragola [2012] published in the electronic Reports of cases (Sibilio)

[15] Ibidem, para 49

[16] Ibidem, para 51; see also O’Brien, para 51

[17] Sibilio, para 52

[18] Joined cases C-362/13 REC, C-363/13 REC and C-407/13 REC Maurizio Fiamingo, Leonardo Zappalà and Francesco Rotondo and Others v Rete Ferroviaria Italiana SpA [2014] not yet published (Fiamingo)

[19] Joined cases C-22/13, C-61/13 to C-63/13 and C-418/13 Raffaella Mascolo, Alba Forni and Immacolata Racca v Ministero dell'Istruzione, dell'Università e della Ricerca, Fortuna Russo v Comune di Napoli and Carla Napolitano and Others v Ministero dell’Istruzione, dell’Università e della Ricerca [2014] not yet published (Mascolo)

[20] Fiamingo, para 38; Mascolo, para 69

[21] Case C-66/85 Deborah Lawrie-Blum v Land Baden-Württemberg [1986] ECR 2121

[22] Ibidem, para 17

[23] Case C-456/02 Michel Trojani v Centre public d'aide sociale de Bruxelles (CPAS) [2004] ECR I-7573

[24] Ibidem, para 15

[25] For a more detailed discussion see Stefaan Van den Bogaert, Practical Regulation of the Mobility of Sportsmen in the EU Post Bosman (Kluwer Law International, The Hague 2005) pp 57-59

[26] Case C-415/93 Union royale belge des sociétés de football association ASBL v Jean-Marc Bosman, Royal club liégeois SA v Jean-Marc Bosman and others and Union des associations européennes de football (UEFA) v Jean-Marc Bosman [1995] ECR I-4921

[27] Ibidem, paras 74, 87, 90

[28] Case C-325/08 Olympique Lyonnais SASP v Olivier Bernard and Newcastle UFC [2010] ECR I-2177 (Olympique Lyonnais), para 29; Olympique Lyonnais, Opinion of AG Sharpston, para 38

[29] Framework Agreement, recital 6; see also Adeneler, para 61

[30] See supra note 5

[31] Ibidem, para 69

[32] Ibidem, para 70

[33] Ibidem, para 72

[34] Ibidem, para 71

[35] Ibidem, para 74

[36] Ibidem, para 88

[37] Joined cases C-378/07 to C-380/07 Kiriaki Angelidaki and Others v Organismos Nomarchiakis Autodioikisis Rethymnis, Charikleia Giannoudi v Dimos Geropotamou and Georgios Karabousanos and Sofoklis Michopoulos v Dimos Geropotamou [2009] ECR I-3071 (Angelidaki)

[38] Case C-586/10 Bianca Kücük v Land Nordrhein-Westfalen [2012] published in the electronic Reports of cases

[39] Ibidem, para 38

[40] Ibidem

[41] Framework Agreement, recital 8

[42] See e.g. Fiamingo, para 61

[43] See e.g. Angelidaki, para 103; Angelidaki, Opinion of AG Kokott, paras 106-107;

[44] In this regard art. 18(2) of 2015 FIFA’s Regulations on the Status and Transfer of Players stipulates that ‘[t]he minimum length of a contract shall be from its effective date until the end of the season, while the maximum length of a contract shall be five years. Contracts of any other length shall only be permitted if consistent with national laws’