Editor's note: Robby Houben is a professor at the University of Antwerp, specializing in sports enterprise law and corporate law. He founded the University of Antwerp’s Football College, championing good governance in professional football. He is editor of the Research Handbook on the Law of Professional Football Clubs (Edward Elgar Publishing 2023). Siniša Petrović is a professor at the University of Zagreb, specializing in sports law and corporate law.
Mid-March, the YouTube channel The Overlap released an interview with Aleksander Čeferin, the current president of UEFA. Asked about the Super League’s court case against UEFA, Čeferin referred to it as ‘mainly symbolical’. This statement reveals a deep trust in the status quo. In this short note we assess if such trust is justified. On the basis of advocate general (AG) Szpunar’s recent opinion in a case on home grown player rules, we argue it is not.
What is it about? On 9 March, AG Szpunar of the Court of Justice of the EU (‘CJEU’) delivered his opinion in the case of Royal Antwerp FC against the Royal Belgian Football Association (‘RBFA’) and the European Football Association UEFA. The case relates to the so-called ‘home grown players’ rule (‘HGP rule’). This rule requires clubs to include at least 8 locally trained players in the list of 25 players that make the A team. According to Szpunar, this likely amounts to an indirect nationality discrimination and, at least, to a restriction of the free movement rights of football players under Article 45 of the Treaty on the Functioning of the EU (‘TFEU’). Nevertheless, the AG considers the HGP rule valid as such, as, according to him, it serves the legitimate aims of stimulating the training of youth players and increasing the competitive balance between clubs. Only insofar as it allows that home grown players includes players trained by another club in the same league (under the UEFA HGP rule, 4 out of 8 home grown players), instead of by the club itself, the HGP rule is not suitable to achieve these aims. His recommendation to the court is, hence, to partially invalidate the HGP rule. He would likely find a (future) HGP rule requiring home grown players to be trained only at the club compatible with EU law.
Is sport so special that it deserves special treatment? On the basis of Wouters and Meca-Medina it is widely accepted that restrictions of competition in sports can be justified if they proportionately pursue legitimate aims. Interestingly, in his assessment of the proportionality of the HGP rule, AG Szpunar seems to do Wouters away as a peculiar case. He finds ‘it difficult to deduce a general principle … according to which private entities bound by Article 45 TFEU would have a greater discretion than that of Member States in comparable situations’. Moreover, he argues, such greater discretion may be warranted in matters transcending classical economic policy, but the HGP rule has a strong economic component and is not such a matter (paras 76-78). As a result, Szpunar sees no reason ‘to afford UEFA and the RBFA a wider discretion than would be the norm for a Member State to justify a restriction of Article 45 TFEU’ (para 78). So, no specific exceptions for football that do not apply to other economic sectors! Wrong, because, at the same time, the AG allows to justify the HGP rule in view of legitimate aims, in this case youth development and competitive balance. Hence, while closing the back door for exceptional treatment of football in his assessment of proportionality, he opens the front door for such exceptional treatment as a matter of principle quite widely - without really underpinning why, nor providing evidence of why football is so special compared to let’s say universities or hospitals, who educate youngsters too, undoubtedly for the public good, and don’t enjoy such special treatment.
But let’s assume sport is somehow special and deserves a special treatment. Does the HGP rule serve both the aim of youth development and increasing competitive balance? Probably not. It seems the aims are conflated here. Yes, the HGP rule serves the aim of encouraging the training of players (at professional football clubs that is), and arguably it makes sense to incentivize clubs to train players. But it is unlikely that this will contribute to more competitive balance between clubs. This has to do with the territorial model of football: ‘domestic’ competitions are organized along national borders. Clubs from larger countries logically have a larger talent pool to recruit young players from than clubs from smaller countries, and therefore they likely have a competitive advantage. Moreover, assuming the pool of talented young players is larger in bigger countries, it is likely that these youngsters will add sporting value to the A-team. That’s a win-win. In smaller countries, clubs will typically have a tougher job recruiting domestic top talent, simply because the pool is smaller. Adding to that is that the real top youngsters of smaller countries will probably sign their first professional player contract with a club of a top tier foreign competition, leaving only the ‘best of the rest’ for the local clubs. At the age of 16, the next Kevin De Bruyne will of course become a ‘club-trained’ local player somewhere, but not in a Belgian club. Cutting a long story short, from the perspective of fair competition, the HGP rule is not neutral and favors clubs that happen to reside in larger countries.
Overboard with domestic borders then? That is what small Luxemburg club Swift Hespérange claims. Swift argues its free movement rights and free competition is infringed because it has to play football within the Luxembourg borders. As a result, it cannot grow and become competitive with clubs from surrounding leagues. Szpunar’s opinion provides food for thought for this case too, as he recognizes that the territorial model of football favors clubs in larger countries more than clubs in smaller countries (paras 68 and 70). His opinion therefore seems to accord with Swift’s intuition.
How could a HGP rule become more neutral in a territorial model of football, with club football organized along domestic borders? Arguably, the rule could concentrate on the under 21 tle 3, together with the additional detail provided by FIFA’s
Human Rights Policy, ensures that freedom of expression as defined in Article
19 of the Universal Declaration of Human Rights and Article 10 of the European
Convention on Human Rights are limitative rules that can be applied directly to
FIFA’s activities, as has been argued by Bützler and Schöddert.
Further, if the affected players and associations can define themselves as
human rights defenders, then Article 11 of FIFA’s Human Rights Policy states
that, ‘FIFA will respect and not interfere with the work of … human rights
defenders who voice concerns about adverse human rights impacts relating to
FIFA.’ Any challenge using this approach would be the first real test of the
enforceability of the human rights protections to which FIFA claims to be
committed. It would also be a test of CAS’s ability to require adherence to the
human rights commitments made by ISFs and to prove that they are more than
simple window-dressing.
Secondly, members of The Rainbow Wall, a
contingent of LGBTQIA+ rights-supporting Welsh fans, were prevented from
entering the Ahmed bin Ali stadium whilst wearing bucket hats
incorporating a rainbow into its design. No explanation for why was given,
however, FIFA and the local organisers would argue that openly supporting LGBTQIA+
rights with the aim of promoting legal change in a country where homosexuality
is illegal is a political statement on apparel and therefore entry into the stadium
wearing the rainbow hat is in breach of the Regulation 3.1.23 of the Stadium
Code of Conduct. A similar argument could be used to justify preventing US
journalist Grant
Wahl from entering the stadium wearing a t-shirt incorporating a rainbow
into its design and Danish journalist Jon Pagh from
wearing the OneLove armband. However, it must be stressed that no such explanation
for the prohibitions applied to these garments was provided to any of the
affected fans or journalists. It must also be recognised that the opinion that promoting
LGBTQIA+ rights is a political expression is highly contested. In a statement
from FIFPRO,
the opposing view was stated succinctly: ‘We maintain that a rainbow flag is
not a political statement but an endorsement of equality and thus a universal
human right.’
It is clear that, as with Rule 50 of the
Olympic Charter, the chilling effect that FIFA’s Regulations have on players’ and
fans’ freedom of expression is likely to be unlawful, as has been discussed at
length both on this blog
and on the Verfassungsblog
Debate on Freedom of Expression in the Olympic Movement. Instead of
revisiting these arguments, which are taken to apply to FIFA’s actions at Qatar
2022, two additional issues related to the FIFA Statutes are explored here.
Articles 3 and 4 of FIFA’s Statutes state
that:
3 Human
rights
FIFA is
committed to respecting all internationally recognised human rights and shall
strive to promote the protection of these rights.
4
Non-discrimination, equality and neutrality
4.1 Discrimination
of any kind against a country, private person or group of people on account of
race, skin colour, ethnic, national or social origin, gender, disability,
language, religion, political opinion or any other opinion, wealth, birth or
any other status, sexual orientation or any other reason is strictly prohibited
and punishable by suspension or expulsion.
FIFA is a long-time supporter of pride
events and in its press release for Pride Month 2022
stated:
[The] FIFA World
Cup Qatar 2022™ will be a celebration of unity and diversity – a joining of
people from all walks of life – regardless of race, ethnicity, religion, age,
disability, sex characteristics, sexual orientation, gender identity and
expression – everybody will be welcome.
Claims that all staff involved in the Qatar
2022 including public and private security forces, would be trained on how to
accomplish their tasks in a non-discriminatory manner, seem not to have been operationalised
effectively.
This begs the question whether FIFA is in
breach of its own Statutes by refusing to allow players to express themselves
freely on armbands and failing to protect fans’ freedom of expression by
wearing rainbows. At the very least, FIFA should have ensured that a protective
LGBTQIA+ regime in the stadiums and the fan zones during the World Cup was
implemented to enable the ‘celebration of unity and diversity’ it claims that
Qatar 2022 should be. FIFA’s actions in Qatar call into question its claims to
be an inclusive and supportive leader on anti-discrimination and human rights,
and is likely to see a backlash from the LGBTQIA+ community that it claims to
support when it engages with Pride 2023; accusations of hypocrisy and virtue
signalling are guaranteed.
With no resolution to the debate at the
time of writing, Articles 3 and 4 could provide players and fans with the
opportunity to demonstrate their support for human rights and
anti-discrimination causes. At the Sochi 2014 Winter Olympics, Athlete
Ally developed the ‘Principle 6 Campaign.’ Instead of criticising directly
Russia's so called anti-gay laws, which
are currently in the process of being extended, athletes promoted Principle
6 of the Olympic Charter, which at the time stated that, ‘Any form of
discrimination with regard to a country or a person on grounds of race,
religion, politics, gender or otherwise is incompatible with belonging to the
Olympic Movement.’ The eventual outcome of this campaign was the addition of
sexual orientation to the list of characteristics protected by Principle 6. Unlike
at Sochi 2014, there is no need to campaign for a change to either of Articles
3 or 4 of the FIFA Statutes; instead, activists want to ensure that they are
being applied. An immediate response for both players and fans would be for
them to quote specifically from Articles 3 and 4, as it would be extremely
difficult for FIFA to claim that they are making political or personal statements
when promoting FIFA’s own foundational values. A creative reminder of what FIFA
claims to stand for could enable player and fan activism to continue throughout
the tournament, and beyond, whilst affected players and associations can develop
a compelling case for the restrictions on freedom of expression to be struck
out by CAS, the Swiss Federal Tribunal and/or the European Court of Human
Rights.