Editor’s note: Rhys Lenarduzzi is a final semester Bachelor of Law (LL.B) and Bachelor of Philosophy (B.Phil.) student, at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.
As recently as September 2020, questions
were raised in the European Parliament on the non-application of training
compensation to women’s football. Whilst this blog will predominantly
consider potential inconsistencies in reasoning for and against training
compensation in men’s and women’s football, the questions before the Commission
were largely on the theme of disrespect and discrimination. Somewhat unfortunately, the questions raised were
side-stepped, with Ms Gabriel (Commissioner for Innovation, Research, Culture, Education and Youth) simply stating
that: “The TFEU does not give the Commission the competence to interfere in the
internal organisation of an independent international organisation such as
FIFA.” This might be true in theory, though one might feel some degree of
uneasiness if privy to the Commission’s role in the 2001 FIFA regulatory
overhaul.
It is currently explicit in the regulations and
the commentary, that in women’s football, signing clubs are not required to
compensate training clubs for developing players, through the training
compensation mechanism that exists in men’s football. Though it is a
contentious comment and as will be expanded below, this may not have always
been the case.
At Article
20 of the FIFA Regulations on the Status and Transfer of Players (RSTP),
one will find that the principles of training compensation shall not apply to
women’s football. Further, in FIFA’s
recently released Women’s Football Administrator Handbook
(the handbook), it states that disputes relating to training compensation are
limited for the moment to male players only.[1]
Regulations on solidarity contributions on the
other hand do apply to women’s football, but given transfer fees are not so
common, the use of the mechanism is not either. As an indication of how
uncommon the activation of the solidarity contribution mechanism in women’s
football might be, FIFA reported in the handbook just four claims with the
Players’ Status Department in 2016 (three claims involving the same player),
and zero since.[2]
That is in comparison to hundreds of claims made per season in men’s football,
where signing and owing clubs had not fulfilled their obligation to pay the
solidarity contribution.
Given
the aforementioned, this blog will largely focus on training compensation and
how it came to be the case that this mechanism, often presented as critical in
the context of men’s football, does not apply in women’s football. To do so, I
will first discuss the reasoning advanced in an unpublished CAS award, which one
may reasonably suspect played a fundamental role in shaping the current
exemption. I will then turn to FIFA’s timely response to the award and the
adoption of its Circular No. 1603. Finally, I will point out the disconnect in FIFA’s
decision to adopt two radically different approaches to the issue of training
compensation in male and female professional football.
1. CAS 2016/A/4598 WFC Spartak Subotica v FC
Barcelona
This little-known, David vs. Goliath, Court of
Arbitration for Sport (CAS) award on appeal of a FIFA Dispute Resolution Chamber (DRC)
decision, might be what prompted FIFA to make the
relevant changes excluding women’s football from the scope of Article 20 RSTP in
2017. Though not a public case, one might reasonably suspect the decision was
the nudge that led FIFA to change the regulations and explicitly state that
training compensation does not apply to women’s football, given the timing and
the fact that this was ultimately a decision that went counter to the internal
decision at the DRC.
A significant consideration for the CAS and one
which needed to be made clear by the panel, was the distinction between whether
training compensation should apply versus does apply. The CAS deemed
its task was not to consider the former, regarding the latter it found the
Serbian women’s club reasonably interpreted the then applicable RSTP as
covering women’s football, given in other places within the same regulations
there is a concerted effort to make no discriminatory distinction between the
genders, and, the regulations at this stage did not explicitly state that the
mechanism did not apply to women’s football.
Consequently, the award provided that FC Barcelona
was to pay 2.5 years at the category 1 rate of EUR 90,000, amounting to EUR 225,000
(plus 5% interest and costs) to WFC Spartak
Subotica despite numerous attempts from FC Barcelona’s legal team to
aver training compensation does not apply to women’s football.
Some of the ill-received arguments were attempts
to raise the question of whether training compensation should exist, largely
pointing at the commercial differences and size of the game in women’s and
men’s football. The panel would not deal with these questions and instead
insisted on considering whether it does exist, per the regulations as they
were. FC Barcelona attempted a comparative argument with Futsal where the
training compensation mechanism does not apply. This was also dismissed and
deemed an improper comparison. Not due to the comparison per se however, but
rather the panel concluded the point may well go against the respondent, given:
“the fact that FIFA included an express
exception of futsal but no equivalent exception of women’s football is at least
some indication that it did not intend to exclude women's football.”[3]
The applicant relied heavily on that which was
stated at the “General Provisions’ section of the RSTP (2012), namely “Terms
referring to natural persons are applicable to both genders.” The tribunal saw
the provision as favourable for the applicant and that the burden was with FC
Barcelona to show that the RSTP ought to be interpreted another way, by either
providing some additional context, history, intention or similar. The
respondent was unable to do so and instead relied heavily on the previous DRC
decision in its submissions and did not submit much by way of evidence at all. The
panel paid particular attention to the lack of evidence given by the respondent
and that this case may have looked differently had FIFA accepted an invitation
to join, as FIFA may have been able to shed light on how the regulations ought
to be interpreted, had they been able to provide the context and intention that
FC Barcelona could not.[4]
Ultimately when it came to FC Barcelona’s
submissions and the prior decision of the DRC, the CAS was uncomfortable with “a
distinct undercurrent of a policy decision that the RSTP should not
apply to women's football”[5] when a rigorous interpretation
of the RSTP (2012) as it stood then was what was required. Furthermore, the panel
landed at “an overall conclusion that the DRC reasons are flawed at various
points and did not sufficiently grapple with the arguments for the Appellant.”[6]
2. 2017
amendments and FIFA Circular No. 1603
Though FIFA declined an invite to join the above
CAS case,[7] it is in a sense as though
the submissions made by FC Barcelona’s legal team were simultaneously on behalf
of FIFA, given a heavy reliance on the prior DRC decision and what followed. In
what may have appeared a clarificatory exercise at the time, it appears the 2017
amendments announced via FIFA Circular
No. 1603 were at
least in part a response to the above CAS case.
Within that
circular, FIFA announced that the regulations “now explicitly specifies that
the principles of training compensation do not apply to women's football.” It
made a point that the express amendments pertaining to training compensation
now reflect existing DRC jurisprudence and “clarify the always intended meaning”.
Whilst that clarity is direct, it may also contain an undertone of frustration
in relation to the above CAS case. FIFA were undoubtedly addressing what it perceived
as a problem, though it is the following from Circular No. 1603 that might
raise more questions than offer solutions: “It
should be noted that the existing training compensation formula would act as a
deterrent to the movement of female players and consequently stall the
development of the women's game.” Sound familiar? This will be expanded upon
below.
Finally on training compensation and women’s
football and before addressing other issues therein, Circular No. 1603 states that “FIFA administration is
working on a specific concept to be applied to the women's game in consultation
with the stakeholders, bearing in mind the overall objective to promote and
enhance the development of women's (professional) football.” Whilst this is for
another blog and for another day, one can reasonably wonder what has been done.
Or might it be the case that refraining from more regulation has resulted in
more growth in the women’s game?
Noteworthy in hindsight, given the CAS case is
and was not public, is that FIFA did not have the pressure it may have
otherwise had to explain its regulatory amendments regarding training
compensation in women’s football, that were contrary to the CAS decision. Whilst
the CAS left the door open for sound arguments to be made against training
compensation in women’s football, they found serious flaws in the arguments
made by FC Barcelona, as well the reasons given by the DRC in the initial
decision. Most notable on this front might be an out-and-out rejection of a
comparison with futsal, as well rejecting a general distinction between the
men’s and women’s game as being useful. Despite
this, it appears FIFA proceeded to explicitly enshrine in the RSTP that
training compensation does not apply, without dealing with the fundamental
questions raised but not necessarily answered in the CAS case. It is just
interesting to note, that the CAS award that was challenging FIFA’s rationale was
coincidentally kept confidential. This might speak for greater (and systematic)
transparency with regard to the CAS’ appeal awards.
3. The Incoherence of a Double
Standard Between Men’s and Women’s Football
It is certainly true, in a very general sense,
that women’s and men’s football are in a different place commercially inter
alia. However, as mentioned in my introductory blog,
men’s football has since the late 1800s in the form of the ‘retain and
transfer’ system, and now with the current mechanisms, had systems that were
claimed to be imperative to incentivise training by compensating clubs for
developing players (not to mention the growth and survival of the game). So why
is the same rationale not applied to women’s football? Might it be reasonable
to conclude that women’s football in its current stage of economic development
is at an equivalent stage to where men’s football was at some point between
then and now, where a system for compensating training clubs and incentivising
clubs to develop youth did exist?
In any case, the rationale appears flawed, as
comparing men and women’s football in the general sense is not a useful
exercise. Just a brief analysis of the gap between the richest and poorest
clubs in men’s football exposes it so. Other than the fact both entities are
football clubs, what is the same about Real Madrid of Spain and Rèal Comboni of
the Central African Republic? What are we to make of a comparison of Olympique
Lyonnais Féminin (the most successful women’s football team in history and a
commercially successful club and story), and Liberty Professionals F.C. men’s
team of the Ghana Premier League (who do not always fill their 2,000 seat
stadium)?
At paragraph II. 19 of the prior DRC decision to
the above CAS case “the DRC deemed necessary to stress that the award of
training compensation for the transfer of female players could possibly even
hinder the further development of women’s football and render the previous
efforts to have been made in vain”. A near identical claim to that made in the
aforementioned FIFA Circular. This may be the case, but isn’t this just an
extension of the “hindrance effect” I referred to in my previous blog regarding
African players? Though not the exact same flavour of hindrance, as in the case
of the African player I was largely referring to the mechanism hindering an
individual from being able to transfer freely. In this instance the hindrance
might be more macro in that, a growing women’s club may be set back if forced
to pay compensation to the training clubs of the players they sign and in turn the
women’s game suffers. In any case, the notion that training compensation might
act as a deterrent or hindrance being exclusive to women’s football is absurd
in theory, and even more so in my experience in practice.
The commercial differences are widely stated and
perhaps overstated as reasons why signing clubs ought not or could not pay
training compensation in women’s football. Whilst such a claim may at least contain
a grain of truth, the commonly used argument overlooks the fact that the cost of
developing and training players at grassroots level, that which is the subject
of compensation, is often similar within nations and certainly across the
genders. In the above CAS case, the only witness and the president of both Spartak Subotica men’s and women’s
clubs, Mr Zoran Arcic, stated that the costs were almost identical for
men and women and that they were paid approximately the same amounts of monthly
salaries or scholarships.[8]
It has been argued that Futsal is comparable in
its development with women’s football commercially, and that is why the
principles of training compensation apply to neither. At paragraph II.16 of the
DRC case prior to the appeal at CAS, it was averred that "the grade of
professionalism reached in futsal also lies far behind the one of eleven-a-side
men’s football insofar, according to the DRC, the situation may be considered
as comparable to the one of the women’s game.” However it has been reported
that some futsal
players are signing contracts in excess of EUR1 million.
How then could one conclude that training compensation regulations should apply
to a small men’s club in South America or Africa, or any confederation for that
matter, with entire budgets much smaller than individual players’ salaries in
futsal or women’s football, when the evidence suggests the commerciality of
futsal and the women’s game in size and opportunity trumps many men’s football
entities.
In 2019, FIFA initiated a Club Solidarity Fund
for the Women’s World Cup, which compensates or rewards clubs that trained and
developed players from the age of 12 who participated in the World Cup.[9] What is one to draw from this positive though
peculiar commitment? Are only training clubs that had the fortune of one of
their players going on to a world cup, worthy of being compensated? This appears
inconsistent with far reaching societal effects training compensation was said
to have and why it was deemed justified in the relevant cases, commentary and
media. Might it be the clubs that are not able to produce players of a high
enough quality to go to a World Cups that need the funding? Further, this fund
will not trigger the same alleged incentives to train players that the training
compensation mechanism apparently has.
An array of arguments and justifications made
for a system that hinders free movement to a considerable degree, though
incentivises training, was embraced in the Bernard[10]
ruling of the Court of Justice of the EU. So how come women’s football should fall
outside of this widely acknowledge necessity to encourage training according to
FIFA? Nowhere in Bernard can one find a specific reference to men only when the
importance of encouraging training is explored at length. Elsewhere in EU
policy documents one finds instead the explicit recognition that “investment in and promotion of
training of young talented sportsmen and
sportswomen in proper conditions is crucial for a sustainable
development of sport at all levels”.[11] Until
the CAS award discussed above, FIFA had appeared to argue that such investment
only eventuates if a training compensation system is introduced. Hence, this
strange double standard between men and women’s football might deserve a much
more elaborate explanation than the one put forward by FIFA.[12]
4. Conclusions
If it is the case
that training women is the same or similar in cost as training men, and it is
that actual cost that the training compensation mechanism is geared towards
incentivising clubs to spend on youth and then be compensated for, then one
might have difficulty in concluding the principles of training compensation
should apply to one and not the other. If it is the case that there is
vulnerability of women’s clubs and in turn of the women’s game if they had to
pay training compensation, and there exists a myriad of men’s clubs in the same
economic predicament, might that say something about the appropriateness of the
mechanism more broadly? Ought a player’s
free movement be prioritised simultaneously with the financial viability of mid
to low wealth clubs, which raises questions about the suitability of the
mechanism across the genders, yet is significantly amplified by its apparent
inappropriateness for women's football.
The identification of the various flaws in the
justifications for the regulations is to say nothing of whether the systems
ought to exist. Rather, it is to highlight that two sets of contradictory rules
are operating within the FIFA regulations and the arguments for the current
state of affairs are philosophically and economically flawed.
It appears that the women’s football community
has bought into this notion around transfer fees, etc. What is culturally
happening then is that clubs are more likely to let a woman follow her dreams
and not stand in the way in the form of demanding transfer fees (and cannot in
the form of training compensation), as the concept of fees is a relatively
foreign one in comparison to the men’s game. This can at first glance appear
unfortunate that women’s clubs are not being compensated, but it could just as
plausibly be uncovering that the important principles of free movement ought to
trump a flawed redistributive system, and that in fact a system of
redistribution in football could (and maybe should) be entirely divorced from
the transfer system and the movement of players.