Dear Minister,
The first official meeting with your fellow Ministers of Sports will take place on 22 April 2010.
One of the items on the agenda of this meeting is a meeting with the major sports organizations, such as IOC and FIFA.
After the ratification of the Treaty of Lisbon these organizations have indicated that article 165 of this Treaty could be the start of a far-reaching autonomy of sport within Europe.
If this intended autonomy were permitted it would have far-reaching consequences. The model that these organizations have in mind is as follows.
The sports sector should be divided into four quadrants, viz.:
1- the sport itself with exclusively the sporting rules;
2- the sport activity with economic aspects;
3- the economic activity with sporting aspects and
4- the purely economic activities around sports.
Until the end of 1995 it was not clear where the boundaries lay between the competences of sports organizations and those of other entities, such as national and supranational governments. The ruling of the European Court in the Bosman case put an end to this lack of clarity. Through this ruling is became at once clear that if sport involves an economic activity, this activity completely falls within the scope of the community legislation and regulations within the European Union.
As a result of this ruling the FIFA regulations were significantly altered in consultation with the European Commission and the employees' representatives united in FIFPro. The result of this productive consultation was that the FIFA regulations were brought into conformity with European law and moreover that for the first time in history the employees in team sports got a voice within the sports world.
From this moment onwards the employees have had a place in various consultative structures of football. This development has even led, with the support of the European Commission, to establishing a formal Social Dialogue in 2008. The participants in this dialogue are EPFL, the employers' organization within European Football, ECA, the organization of European Top clubs; UEFA the umbrella body of European football and FIFPro, on behalf of the employees.
Consultation within the Social Dialogue has very quickly resulted in the drafting of a collective labour agreement for the entire EU territory. This meant that professional football had the most advanced Social Dialogue in Europe. There were already discussions about expansion to third countries within Europe.
The interpretation of article 165 of the Treaty of Lisbon by the sports organizations has at present led to an impasse in the Social Dialogue. There is no longer any question of constructive dialogue. Apparently the sports bodies are more interested in consultations with organizations such as yours in order to return to the point of view which was abandoned with the Bosman ruling.
That promises no good at all. Because if we consider what is taking place in the current situation, where a system of checks and balances exists based on European law, the situation will not improve for the sportsperson as an employee. On the contrary!
Players who want to break their contract in compliance with the FIFA regulations, which were drawn up in dialogue with the European Commission, find themselves confronted with huge compensations that bear no relationship at all to the value of the contract. A good example of this is the Matuzalem case concerning a residual contract value of 2.4 million Euro, but which turned out to be a compensation of 12 million Euro. This incredible discrepancy was based on the specificities of sport. However, when the FIFA regulations were drawn up, it was precisely these characteristics that were taken into account. The best example of this is the strengthened contractual stability of three years during which a contract can de facto not be terminated prematurely.
The use of the concept specificities of sport results in a return of the old transfer system which is exactly what is forbidden based on EU legislation.
And also with regard to the regulations on drugs, the sports organizations try to hold the community regulations at bay. This has also failed. In the Meca Medina ruling the European Court of Justice decided that the drugs rules with regard to professional sportspersons can be tested against the community regulations and don't fall outside the scope of these regulations.
Very recently the European Court has given judgement in the Olivier Bernard case. This case involved a French regulation that obliges players to sign a contract with the club where he received his training. If he refused he would be obliged to pay compensation.
In this case the Court judged that compulsory signing is in breech of the free movement of employees. However, to demand compensation for the training received, is in the opinion of the Court possible within the scope of European legislation. The system set up by FIFA in dialogue with the European Commission seems to meet the criteria which the Court indicates.
The main conclusion drawn from the cooperation between FIFA and the European Commission and from the rulings of the European Court is, that professional sport fits very well within the scope of community legislation and that there is no good reason to place sports in an exceptional position, such as requested by IOC and other organizations.
If professional sport as an industry sector is placed in an exceptional position, this opens the way to other sectors of industry to demand, based on their specificities, a treatment that falls outside the scope of European legislation. In the end, this will unnecessarily endanger the unity of the Union.
Based on current experiences we fear that sportspersons as employees will be the first victims of assigning an exceptional position to sport. Their legal protection is indeed affected without being replaced by a balanced system of legal protection. Professional sportspersons are employees just as any other employee in the European Union and deserve the same legal protection.
The discussion about the question of which specificities of sport require a different treatment, should take place within the European Social Dialogue and not in a forum, in which employees do not have an equal position.
In the interest of the employees we urgently request you to keep professional sport completely within the framework of European law, so that the European Social Dialogue, which has just begun, can be continued.
Sincerely,
Philippe Piat,
President of FIFPro Division Europe
