By Ennio Bovolenta, Valloni Attorneys at Law, Zurich, Switzerland
On 13 June, the English Professional Footballers’ Association (PFA) and the Union Nationale des Footballeurs Professionnels (UNFP, the French players’ union), with the support of FIFPro Europe, have submitted a legal claim against FIFA before the Belgian courts, challenging the legality of FIFA's decisions unilaterally to set the International Match Calendar and, in particular, to create and schedule the FIFA Club World Cup 2025.
Interestingly, on 20 June, also the Italian Player Union (Associazione Italiana Calciatori - AIC) announced the decision to join the original claimants, PFA and UNFP, in the proceedings before the Brussels Court of Commerce
The claimants argue that FIFA’s decisions violate players' and unions' rights under the EU Charter of Fundamental Rights and EU Competition Law.
More specifically, the claim asks the Brussels Court of Commerce to refer the case to the European Court of Justice (ECJ), to provide a preliminary ruling on the interpretation of EU law as it relates to footballers’ rights under the EU Charter of Fundamental Rights (CFREU).
The CFREU guarantees workers and their trade unions various fundamental rights. These include:
- the prohibition of forced or compulsory labour (article 5);
- the freedom to choose an occupation and right to engage in work (article 15);
- the right to negotiate and conclude collective agreements (article 28);
- the right to fair and healthy working conditions, and the right to an annual period of paid leave (article 31).
In the claimants’ opinion, for the players most in demand for both club matches and national team competitions, the right to a guaranteed annual break would become virtually non-existent, with the FIFA Club World Cup 2025 being held during the only period of the year theoretically available to players to take such breaks.
Players’ unions believe that such decisions by FIFA constitute a serious breach of the CFREU and that the aim of the new competition does not consider with proper regard the impact on the players involved or on other stakeholders within professional football.
Furthermore, players’ unions argue that, in the light of the ECJ’s ‘European Super League’ ruling, FIFA’s decision to schedule unilaterally new competitions are not the result of clear, objective, transparent, non-discriminatory and democratic legal frameworks, constituting ‘restrictions of competition by object’ within the meaning of Article 101 of the Treaty on the Functioning of the European Union (TFEU). That provision, in fact, prohibits those agreements and decisions which may “have as their object or effect the prevention, restriction or distortion of competition within the internal market”.
Based on the above-mentioned considerations, PFA, UNFP and AIC are now asking the Brussels Court of Commerce to refer the matter to the ECJ by way of four questions for a preliminary ruling, the substance of which can be summarised as follows:
- Does FIFA, by unilaterally and discretionarily imposing an International Match Calendar, and, more specifically, a new competition entitled ‘FIFA Club World Cup 2025’, infringe the rights that workers and trade unions derive from the CFREU and EU competition law?
- More specifically, does the unilateral imposition of such decisions on the players violate the right enshrined in Article 28 of the CFREU for those players to collectively bargain their terms and conditions of employment, via their trade unions?
In more detail, the claimants are asking the Belgian Court to refer four questions to the ECJ for a preliminary ruling. The four questions relate to:
- whether the rights guaranteed to workers and their trade unions by the CFREU, in particular Articles 5, 15, 28 and 31, prohibit FIFA scheduling the Club World Cup 2025 at a time that has traditionally represented the ‘window’ when players would take an annual break, and against the formal representations of player/worker unions;
- whether the unilateral imposition of such decisions on players infringes the rights under Article 28 of the Charter for those players to collectively bargain over their terms and conditions of employment;
- whether the right to healthy working conditions, guaranteed by Article 31, is violated by FIFA’s decision to impose a significant additional workload via the Club World Cup 2025; and
- whether FIFA’s unilateral decisions with regard to the International Match Calendar and the Club World Cup 2025 give rise to “restrictions of competition” pursuant to article 101 TFEU.
The ECJ has been asked to answer these questions through a preliminary ruling.
The ECJ would then send the case back to the court in Belgium for a final ruling, which could have a significant impact on the way that the football calendar is structured in future.
The outcome of these proceedings is awaited with interest in many quarters!
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