Challenging The Transfer Window System

FIFPro Challenge to Football’s Transfer System is Likely to end in a Score Draw

By Simon Boyes

The announcement by FIFPro, the global union representing football players, that it has launched a legal action against the football transfer system has received substantial media attention. The complaint to the European Commission, in its capacity as the European Union’s competition law body, has been made following a failure to reach agreement with the game’s authorities on changes to the transfer system.

FIFPro has been seeking a change to the rules that regulate the relationship between clubs and their players, in particular as they relate to breaches of contract by those clubs. FIFPro’s principal concern has been that when a player seeks to terminate their contracts for ‘just cause’, as a result of a club failing to pay their wages, they can be faced with a significant period out of the game and, potentially, substantial financial liabilities should their claim eventually prove unfounded.

Being dissatisfied with the progress made through negotiation, FIFPro has now raised the stakes by making these issues a matter of complaint to the Commission. FIFPro has further upped the ante by extending its claim. Taken together the various points of the complaint seem to amount to a wholesale challenge to football’s transfer system as it presently stands. There are specific issues raised relating to the existing rules, but the major part of the complaint is, in effect, a challenge to the transfer system as a whole.

The tendency, when these sort of challenges arise, is for the football authorities to throw their hands in the air and proclaim that the claims being pursued amount to an existential threat to the game. From the abolition of the maximum wage, to George Eastham’s case, to Bosman and beyond, the game’s regulators have often been quick to predict ‘the end of football’. The reality has always been different, the legal authorities have shown themselves able to balance the interests of the players with the wider needs of the sport itself.

It seems unlikely that the European Commission will act so as to wholly dismantle the football transfer system.

The history of the Commission’s involvement in sport since the Court of Justice judgment in Bosman indicates that a more subtle line is likely to prevail. The recent past has shown that both the Court of Justice and the Commission are likely to prefer an approach where the existing system is tweaked and refined, rather than scrapped in its entirety. Equally, FIFA – football’s global regulator has, since Bosman, preferred to adjust their rules to obviate legal concerns before litigation is concluded. In Piau – a case concerning the legality of FIFA regulation of player agents – FIFA responded quickly to adjust its rules in accordance with the concerns of the Commission. In Balog – relating to the treatment of non-EU nationals in football – and Oulmers – concerning the release of players for international matches – FIFA twice acted at the eleventh hour to reach a settlement before the case was decided by the Court of Justice.

It seems unlikely that FIFPro will truly believe that they will achieve a wholesale reworking of the regulation of football’s labour market; the complaint made to the Commission clearly stems from frustration of its attempts to negotiate changes in much narrower areas of concern. The wider challenge to the transfer system appears calculated to raise the profile of the complaint and to provide a more serious legal threat in order to encourage FIFA to meet FIFPro’s more specific concerns.

The likely outcome is that FIFA will – by the threat of legal challenge to the wider transfer system – be persuaded to make adjustments to the regulations relating to players terminating their contracts for ‘just cause’, but that the fundamentals of the existing football transfer system will remain in place.