Provisional text
OPINION OF ADVOCATE GENERAL
SZPUNAR
delivered on 30 April 2024 (1)
Case C‑650/22
Fédération internationale de football association (FIFA)
v
BZ,
Interveners:
Union Royale Belge des Sociétés de Football-Association ASBL (URBSFA),
SA Sporting du Pays de Charleroi,
Fédération Internationale des Footballeurs Professionnels,
Union Nationale des Footballeurs Professionnels,
Fédération Internationale des Footballeurs Professionnels, Division Europe
(Request for a preliminary ruling from the Cour d’appel de Mons (Court of Appeal, Mons, Belgium))
(Reference for a preliminary ruling – Freedom of movement for workers – Prohibitions on agreements – FIFA Regulations on the Status and Transfer of Players – Early termination of a contract concluded between a club and a player – Regulations penalising another club which employs the player in question – Prohibition on issuing the certificate required for the transfer of that player to that other club)
I. Introduction
1. The present reference for a preliminary ruling from the Cour d’appel de Mons (Court of Appeal, Mons, Belgium), which concerns the interpretation of Articles 45 and 101 TFEU, is made in proceedings between BZ, a football player, and the Fédération internationale de football association (International Association Football Federation; FIF) concerning the damage that the player alleges to have suffered as a result of certain FIFA rules governing contractual relations between players and clubs.
2. The rules in question relate to compensation, sporting sanctions and the issuance of a mandatory international transfer certificate, in a situation of an alleged termination of contract without just cause.
3. In this Opinion, I will examine whether the contested provisions are precluded by Articles 45 and 101 TFEU or by Article 15 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
II. Facts, procedure and question referred
A. The parties to the dispute
4. BZ is a former professional footballer who resides in Paris (France).
5. SA Sporting du Pays de Charleroi is a Belgian football club.
6. FIFA is an association, founded in 1904, in Paris. It is based in Zurich (Switzerland) and is governed by Swiss law. FIFA’s objectives, described in Article 2 of the FIFA Statutes are, inter alia, ‘to draw up regulations and provisions governing the game of football and related matters and to ensure their enforcement’ (2) and ‘to control every type of association football by taking appropriate steps to prevent infringement of the Statutes, regulations or decisions of FIFA or of the Laws of the Game’. (3) Among its bodies are ‘the Congress’ as ‘the supreme and legislative body’, (4) ‘the Council’ as ‘the strategic and oversight body’ (5) and ‘the general secretariat’ as ‘the executive, operational and administrative body’. (6)
7. Under Articles 11 and 14 of the FIFA Statutes, any ‘association which is responsible for organising and supervising football’ in a given country may become a member of FIFA provided, inter alia, that it is already a member of one of the six continental confederations recognised by FIFA and referred to in Article 22 of the FIFA Statutes. These include the Union des associations européennes de football (Union of European Football Associations; UEFA). Such an association must first undertake to comply with FIFA’s statutes, regulations, directives and decisions, as well as those of the continental confederation of which the association is already a member. In practice, more than 200 national football associations are currently members of FIFA. As such, they are obliged under Articles 14 and 15 of the FIFA Statutes, inter alia, to ‘cause their own members to comply with the FIFA Statutes, regulations, directives and decisions of FIFA bodies’, (7) and to ensure that they are observed by all those involved in football, in particular the professional leagues, clubs and players. Moreover, ‘clubs, leagues or any other groups affiliated to a member association shall be subordinate to and recognised by that member association’. (8)
B. The contested provisions
8. On 22 March 2014, FIFA adopted a text entitled ‘Regulations on the Status and Transfer of Players’ (‘the RSTP’), which came into force on 1 August of that year. Those regulations repeal and replace an earlier set of regulations with the same title.
9. Article 9.1 of the RSTP is worded as follows:
‘Players registered at one association may only be registered at a new association once the latter has received an International Transfer Certificate (hereinafter: ITC) from the former association. The ITC shall be issued free of charge without any conditions or time limit. Any provisions to the contrary shall be null and void. The association issuing the ITC shall lodge a copy with FIFA. The administrative procedures for issuing the ITC are contained in Annexe 3, article 8, … of these regulations.’
10. Article 8.2, paragraph 7 of Annexe 3 to the RSTP stipulates that ‘the former association shall not deliver an ITC if a contractual dispute on grounds of the circumstances stipulated in Annexe 3, article 8.2 paragraph 4 b) has arisen between the former club and the professional player …’.
11. Article 8.2, paragraph 4 b) of Annexe 3 to the RSTP in turn states that ‘within seven days of the date of the ITC request, the former association shall … reject the ITC request and indicate … the reason for the rejection, which may be either that the contract between the former club and the professional player has not expired or that there has been no mutual agreement regarding its early termination’.
12. Under Article 17 of the RSTP:
‘The following provisions apply if a contract is terminated without just cause:
1. In all cases, the party in breach shall pay compensation. Subject to the provisions of Article 20 and Annexe 4 in relation to training compensation, and unless otherwise provided for in the contract, compensation for the breach shall be calculated with due consideration for the law of the country concerned, the specificity of sport, and any other objective criteria. These criteria shall include, in particular, the remuneration and other benefits due to the player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, the fees and expenses paid or incurred by the former club (amortised over the term of the contract) and whether the contractual breach falls within a protected period.
2. Entitlement to compensation cannot be assigned to a third party. If a professional is required to pay compensation, the professional and his [or her] new club shall be jointly and severally liable for its payment. The amount may be stipulated in the contract or agreed between the parties.
…
4. In addition to the obligation to pay compensation, sporting sanctions shall be imposed on any club found to be in breach of contract or found to be inducing a breach of contract during the protected period. It shall be presumed, unless established to the contrary, that any club signing a professional who has terminated his [or her] contract without just cause has induced that professional to commit a breach. The club shall be banned from registering any new players, either nationally or internationally, for two entire and consecutive registration periods. The club shall be able to register new players, either nationally or internationally, only as of the next registration period following the complete serving of the relevant sporting sanction. In particular, it may not make use of the exception and the provisional measures stipulated in article 6 paragraph 1 of these regulations in order to register players at an earlier stage.’
C. The main proceedings
13. BZ was a professional footballer between 2004 and 2019.
14. On 20 August 2013, he signed a four-year contract with the professional Russian football club Futbolny Klub Lokomotiv (‘Lokomotiv Moscow’).
15. On 22 August 2014, Lokomotiv Moscow terminated that contract and applied to the FIFA Dispute Resolution Chamber (‘the DRC’) for an order that BZ pay compensation of EUR 20 million, alleging breach and ‘termination of contract without just cause’ within the meaning of Article 17 of the RSTP. BZ thereupon submitted a counterclaim seeking payment by Lokomotiv Moscow of unpaid wages and compensation equal to the amount of the remuneration that would have been due to him under the contract had it run to term.
16. Subsequently, BZ began a search for a new club able to employ him, which proved to be difficult. BZ claims that this was because of the risk to the new club of being held liable, jointly and severally with BZ himself, to pay any compensation found to be due to Lokomotiv Moscow.
17. BZ states that, in spite of interest from several clubs, the only offer he received was the one from Sporting du pays de Charleroi which, on 19 February 2015, sent him an offer of employment containing two cumulative suspensive conditions: (1) that he be registered and eligible, in accordance with the applicable rules and by 30 March 2015 at the latest, to play for Sporting du Pays de Charleroi’s first team in any official competition organised by the Union Royale Belge des Sociétés de Football-Association ASBL (Royal Belgian Football Association; ‘the URBSFA’), UEFA or FIFA; and (2) that he have (by the same date) obtained written and unconditional confirmation that Sporting du Pays de Charleroi could not be held jointly and severally liable for any compensation (in particular, compensation for termination of contract) which BZ might be liable to pay to Lokomotiv Moscow.
18. By letters of 20 February and 5 March 2015, the respective advisers of BZ and Sporting du Pays de Charleroi requested confirmation from both FIFA and the URBSFA that BZ could be registered and made eligible, in accordance with the applicable rules, to play for Sporting du Pays de Charleroi’s first team and that Article 17.2 and 4 of the RSTP would not be enforced against him.
19. By letter of 23 February 2015, FIFA replied that only the competent decision-making body, and not its administrative body, had the power to apply the provisions of the RSTP. For its part, the URBSFA indicated on 6 March 2015 that, under the FIFA rules, BZ could not be registered until an ITC had been issued by his former club.
20. By decision of 18 May 2015, the DRC upheld Lokomotiv Moscow’s claim in part, fixing the amount of compensation payable by BZ at EUR 10.5 million and dismissing BZ’s claims. The DRC also ruled that Article 17.2 of the RSTP would not apply to BZ in future. That decision was upheld on appeal by the Court of Arbitration for Sport (CAS) on 27 May 2016.
21. On 24 July 2015, BZ entered into a contract of employment with the club Olympique de Marseille (France).
22. On 9 December 2015, BZ brought proceedings against FIFA and the URBSFA before the tribunal de commerce du Hainaut, division de Charleroi (Commercial Court, Hainaut, Charleroi division, Belgium), seeking damages for loss, namely a loss of earnings of EUR 6 million, that he claims to have suffered by reason of their application of the contested provisions, which he considers to be contrary to Union law.
23. By judgment of 19 January 2017, that court found BZ’s claim to be well founded in principle and ordered FIFA and the URBSFA to pay a provisional sum of EUR 60 001.
24. FIFA brought an appeal against that judgment before the referring court. Having been joined as an intervener in the proceedings, the URBSFA also seeks to vary the judgment of 19 January 2017.
D. The question referred
25. It is against this background that, by order of 19 September 2022, received at the Court of Justice on 17 October 2022, the Cour d’appel de Mons (Court of Appeal, Mons) referred the following question to the Court for a preliminary ruling:
‘Are Articles 45 and 101 TFEU to be interpreted as precluding:
– the principle that the player and the club wishing to employ him [or her] are jointly and severally liable in respect of the compensation due to the club whose contract with the player has been terminated without just cause, as stipulated in Article 17.2 of the RSTP, in conjunction with the sporting sanctions provided for in Article 17.4 of those regulations and the financial sanctions provided for in Article 17.1;
– the ability of the association to which the player’s former club belongs not to deliver the [ITC] required if the player is to be employed by a new club, where there is a dispute between that former club and the player (Article 9.1 of the RSTP and Article 8.2.7 of Annexe 3 to the RSTP)?’
26. Written observations have been submitted by FIFA, BZ, the URBSFA, the Fédération Internationale des Footballeurs Professionnels (International Federation of Professional Footballers; FIFPro), (9) the Fédération Internationale des Footballeurs Professionnels, Division Europe; FIFPro Europe), the Union Nationale des Footballeurs Professionnels (UNFP), the Greek, French, Italian and Hungarian Governments and the European Commission. FIFA, BZ, the URBSFA, FIFPro, FIFPro Europe, UNFP, the Greek Government and the Commission took part in the hearing, which was held on 18 January 2024.
III. Assessment
A. Admissibility
27. FIFA and the URBSFA allege insufficient precision in the order for reference and argue that the dispute in the main proceedings should be viewed as ‘purely internal’ in nature, with the result that the present case should be held to be inadmissible. The Greek, French and Hungarian Governments harbour similar doubts about the admissibility of the case.
28. I cannot subscribe to this argument. The legal issues are perfectly clear from the order for reference. All of the parties concerned fully grasped the meaning and context of the question referred and the factual and regulatory context in which it arises, as well as the fact that the dispute had a cross-border dimension in that the footballer, who was of French nationality and domiciled in France, alleged that he had been prevented from moving, for the purposes of his profession, to Belgium. (10)
B. Substance
29. By its question, the referring court seeks, in essence, to ascertain whether Articles 45 and 101 TFEU preclude the application of rules, as adopted by FIFA, which establish that: (1) a player and a club wishing to employ him or her are jointly and severally liable in respect of the compensation due to the club whose contract with the player has been terminated without just cause; and (2) an association to which a player’s former club belongs has the ability not to deliver the ITC required if the player is to be employed by a new club, where there is a dispute between that former club and the player.
1. Methodological remarks
30. It should be recalled that the Court has recently delivered two arrêts de principe concerning rules adopted by private entities responsible for the organisation and control of football at world, European and national levels. (11) This implies that a considerable effort of synthesising and summarising prior case-law has just been carried out. Ergo, since it is able to build on these recent judgments, the present Opinion shall focus primarily on the specificities of the present case. (12)
31. The Court scrutinises rules such as the contested provisions both under the competition rules and under the provisions of the internal market. (13) Hence, Articles 101 and 45 TFEU are, in principle, applicable to the present case. This is a pragmatic approach which can nevertheless lead to potentially delicate situations, as I will attempt to demonstrate briefly.
32. Under the logic of the Treaties, both the fundamental freedoms and the competition rules serve the objective of providing for a functioning internal market. (14) In that connection, Protocol (No 27) on the internal market and competition expressly clarifies that the internal market as set out in Article 3 TEU includes a system ensuring that competition is not distorted. (15) The initial conception of the Treaties had been that the fundamental freedoms were directed at Member States as public entities, whereas the rules on competition were to bind private undertakings.
33. Over the years, however, this separation has become blurred, It is often difficult to deny that some private entities act in a manner close to that of a State, either by sheer dint of their economic power or because of the manner in which they enact ‘rules’, whilst there are other situations in which acts of a State are more akin to those of a private firm. The Court has thus (had to) keep up with such developments and the case-law has evolved: on the one hand, in certain situations some of the internal market freedoms were applied to private entities, (16) whilst on the other hand, in other situations, Member States’ actions were held to come within the remit of competition law. (17) A comprehensive and conclusive assessment of this question would go beyond the scope of this Opinion.
34. In addition, in some instances, the Court has found the same set of facts to be subject to both the fundamental freedoms and the rules on competition. In other words, the approach was no longer a binary choice (either competition rules or fundamental freedoms), but a parallel (or cumulative) one. Given the initial rationale of the Treaties described above, the question may arise as to which reasons have led the Court to this approach. Obviously, while such a parallel application of provisions may lead to the desirable situation that no rules adopted by an entity such as FIFA escape the remit of Union law, it does not come without difficulties: what happens when, say, a contested provision is found to be compatible with Article 101 TFEU, but incompatible with Article 45 TFEU, or vice versa? The intuitive answer is clear: both sets of rules (competition and fundamental freedoms) must be appraised independently on their merits.
35. Let us take, by way of example, the Court’s judgment in Royal Antwerp Football Club (18) and imagine that in applying the findings of the Court, the referring court arrives at a situation where the contested provisions (1) have as their object a restriction of competition within the meaning of Article 101 TFEU (19) and (2) constitute a restriction under Article 45 TFEU. Next, still applying the judgment in Royal Antwerp Football Club to the case before it, the national court would have to find that a restriction by object (Article 101 TFEU) is forbidden per se, making it impossible to appraise it in the light of other objectives under the Wouters and Others (20) case-law. (21) At the same time, the national court could examine possible justifications under Article 45 TFEU and even find that in casu the restrictions are justified. As a result, the contested provisions would be incompatible with Article 101 TFEU, but compatible with Article 45 TFEU.
36. Finally, it should be borne in mind that the legal consequences attached to infringements of the fundamental freedoms and the competition rules differ fundamentally: once, the Court has found FIFA to be in breach of, say, Article 45 TFEU, the contested provisions cannot be applied within the FIFA jurisdiction as far as the EU internal market is concerned. However, there still needs to be a cross-border element between Member States. By contrast, once a breach of Article 101 TFEU has been found, the contested provisions cannot be applied, not even within a Member State.
37. Be that as it may, in the present Opinion I will be following the same approach as the Court in the abovementioned arrêts de principe: I will examine both Articles 45 and 101 TFEU.
2. The contested provisions
38. At this stage, I deem it helpful to recap quickly the contested provisions.
39. Under Article 17.1, 2 and 4 of the RSTP, a player and the club wishing to employ him or her are jointly and severally liable in respect of the compensation due to the club whose contract with the player has been terminated without just cause. Moreover, sporting sanctions and financial sanctions are imposed on the player and the club. I will refer, hereinafter, to these rules as ‘rules on compensation and sanctions’.
40. Under Article 9.1 of the RSTP and Article 8.2, paragraph 7 of Annexe 3 to the RSTP, an association to which a player’s former club belongs is entitled not to deliver the ITC required if the player is to be employed by a new club, where there is a dispute between that former club and the player.
3. Restriction under Article 45 TFEU
41. In accordance with the Court’s settled case-law, Article 45 TFEU precludes any measure, whether it is based on nationality or is applicable without regard to nationality, which might place EU nationals at a disadvantage when they wish to pursue an economic activity in the territory of a Member State other than their Member State of origin, by preventing or deterring them from leaving the latter. (22)
42. There can be little doubt as to the restrictive nature of all the contested provisions, as evidenced not least by the fact that none of the parties to the present proceedings attempts to question such a restrictive nature.
43. Indeed, the provisions providing for a joint and several liability of the new club for payment of the compensation for breach of contract owed by the professional player to his or her former club in the event of premature termination of a contract without just cause are such as to discourage or dissuade clubs from hiring the player for fear of a financial risk. The same applies with respect to the sporting sanction consisting of a ban on registering new players at national or international level, for two complete and consecutive registration periods, as well as the non-issuance of the ITC. This can effectively prevent a player from exercising his or her profession with a club located in another Member State.
44. In this connection, it is futile to examine whether the contested provisions constitute indirect discrimination against nationals of other Member States or whether they are a mere obstacle to the free movement of persons. What counts is that players are effectively impeded from moving to clubs in other Member States. This is precisely what happened in the present case: BZ, being a French national and in gainful employment, intended to take up work in Belgium, a state of which he was not a national. The contested provisions effectively prevented him from being able to do so.
4. On Article 101 TFEU
45. Under Article 101(1) TFEU, all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market are incompatible with the internal market.
46. The contested provisions constitute decisions by associations of undertakings, within the meaning of Article 101(1) TFEU, (23) which are capable of affecting trade between Member States within the meaning of that same provision. (24) In this connection, I should like to stress that the fact that the contested provisions concern what would typically be regarded as labour law does not alter this finding. In particular, what has become known as the ‘Albany exception’ does not apply to the present case, for the simple reason that the contested provisions do not amount to collective agreements between employers and employees. (25) Rather, as is rightly emphasised by BZ, it is because of the absence of such agreements that FIFA has adopted the RSTP.
47. Next, I will examine whether the contested provisions amount to conduct having as its object or effect the prevention, restriction or distortion of competition within the internal market.
48. BZ and FIFPro claim that Article 101(1) TFEU must be interpreted as meaning that the contested provisions have as their object (26) the restriction of competition within the meaning of Article 101(1) TFEU. Article 17 of the RSTP, Article 9.1 thereof and Article 8.2, paragraph 7 of Annexe 3 thereto have, in view of their wording, their economic and legal context and the objective aim which they pursue, the very object, and in any event the effect, both actual and potential, of imposing on all the ‘undertakings’ which, from an economic point of view, are the professional football clubs affiliated to the national football associations which are members of FIFA, a set of conditions which are so prohibitive and dissuasive, in order to secure the services of high-level players who are no longer under contract with a competing club but whose contract is alleged to have been terminated without just cause, that those conditions must be regarded as excessively limiting or ‘locking in’, in law and in practice, the possibility for those clubs to compete with each other by that means. Such a restriction is all the more significant inasmuch as it relates to an element which, according to legal and economic doctrine, constitutes one of the main parameters through which clubs can compete with each other, given that the hiring of players is itself linked to the organisation and broadcasting of interclub football competitions. In addition, these rules limit, in the same way and to the same extent, the possibility for the players themselves to compete.
49. By contrast, FIFA and the URBSFA deny a restriction under Article 101(1) TFEU and focus on a possible justification of the contested provisions. The Greek and Hungarian Governments put forward a similar analysis. The French Government in essence refers the question of restriction by object or effect under Article 101(1) TFEU back to the referring court. (27)
50. The Commission considers there to be a restriction of competition by effect. It claims that the contested provisions cannot be regarded as having as their object the restriction of competition, having regard to their content, their economic and legal context and the aims they pursue, in so far as they apply only in the event of termination of contract without just cause and therefore have no impact on the possibility for clubs to compete freely by signing up players both at the end of the contract binding them to their former club and during the term of that contract, provided that such a signing is agreed by all concerned and complies with the various temporal and material rules governing the registration of players.
(a) Restriction of competition by object (Article 101(1) TFEU)
51. In order to determine whether there is a restriction of competition by object or by effect, it is appropriate to begin by examining the object of the conduct in question. If, at the end of such an examination, that conduct proves to have an anticompetitive object, it is not necessary to examine its effect on competition. Thus, it is only if that conduct is found not to have an anticompetitive object that it will be necessary, in a second stage, to examine its effect. (28) In order to determine, in a given case, whether an agreement, a decision by an association of undertakings or a concerted practice reveals, by its very nature, (29) a sufficient degree of harm to competition that it may be considered as having as its object the prevention, restriction or distortion thereof, it is necessary to examine, first, the content of the agreement, decision or practice in question; second, the economic and legal context of which it forms a part; and, third, its objectives. (30)
52. The combination of the contested provisions leads to the following scenario: Article 17 of the RSTP provides that, as soon as a player has terminated a contract without just cause, compensation must be paid and severe sporting sanctions kick in. Moreover, under Article 8.2 of Annexe 3 to the RSTP, such a player will not receive the ITC enabling a club to field him or her.
53. In other words, the consequences of a player terminating a contract without just cause are so draconian that it is highly unlikely that a player will go down this route. The contested provisions are designed in such a way as to have a deterrent effect and send a chill down each player’s spine. The same applies with respect to clubs potentially interested in luring players into new opportunities while the latter are in a running contract. The ‘price tag’ for such an operation would be extremely high.
54. Thus, by their very nature, (31) the contested provisions limit the possibility for players to switch clubs and, conversely, for (new) clubs to hire players, in a situation where a player has terminated his or her contract without just cause. As expressly recognised by the Court, the recruitment of talented players constitutes ‘one of the essential parameters of the competition in which football clubs may engage’, (32) making players the most important ‘factor of production’ (33) for clubs.
55. In so doing, the contested provisions, by limiting clubs’ ability to recruit players, necessarily affect competition between clubs on the market for the acquisition of professional players.
56. These elements are strong indications that there is a restriction of competition by object. Obviously, there are other situations in which players can change clubs and be recruited. This, however, does not mean, as the Commission implies in its observations, that there is no restriction of competition by object. (34) In a situation where a contract is terminated without just cause, competition is, under the contested provisions, designed to come to a halt. I do not see how this cannot be equated with a restriction of competition by object.
(b) Restriction of competition by effect (Article 101(1) TFEU)
57. As a consequence of my analysis, there is no longer a need to examine whether the contested provisions entail a restriction of competition by effect. That being said, it appears clear to me that the contested provisions, at the very least, have as their effect a restriction of competition. During the hearing, the FIFA representative explained that there are virtually no instances of a termination of contract without just cause, a fact which is, to my mind, a more than clear demonstration that the contested provisions have their intended ‘chilling’ effect, as described above.
(c) Exemption (Article 101(3) TFEU)
58. The requirements for a possible exemption under Article 101(3) TFEU are, in my view, clearly not met, which is why they shall not be examined in the present Opinion. (35)
(d) Conclusion on Article 101
59. The contested provisions are precluded by Article 101(1) TFEU. In the event that the Court were to find there to be a restriction of competition not by object, but by effect, the next step would be to examine the contested provisions in the light of other objectives under the Wouters and Others (36) case-law, so as to ascertain whether they are justified by the pursuit of one or more legitimate objectives in the public interest which are not per se anticompetitive in nature. (37) In this respect, the test would, in essence, be comparable to the justification test under Article 45 TFEU, to which I will now turn.
5. Justification
60. A restriction on the freedom of movement for workers cannot be justified unless it, in the first place, serves one of the grounds of justification listed in Article 45(3) TFEU (38) or an overriding reason relating to the public interest (39) and, in the second place, observes the principle of proportionality, meaning that it is suitable for securing, in a consistent and systematic manner, the attainment of the objective pursued and does not go beyond what is necessary in order to attain it. (40)
(a) Identifying an overriding reason relating to the public interest
61. FIFA and the URBSFA claim that the contested provisions seek to maintain contractual stability in the professional football sector and, more specifically, to ensure compliance with the obligations entered into by both players and clubs.
62. I do not see a problem with accepting these invoked grounds as overriding reasons relating to the public interest, in so far as they do not constitute objectives of a purely economic nature. (41) Moreover, to the extent that contractual stability is purported to contribute to a certain level playing field between clubs, it should be recalled that the Court has expressly recognised the aim of maintaining a balance between clubs by preserving a certain degree of equality and uncertainty as to results. (42)
(b) Proportionality
63. Next, the contested provisions must respect the principle of proportionality, meaning that they must be suitable for securing, in a consistent and systematic manner, the attainment of the objectives pursued and must not go beyond what is necessary in order to attain them. It will be for the referring court to assess the proportionality of the contested provisions. In that connection, the burden of proof as to the proportionality of the contested provisions lies with FIFA.
(1) Suitability
64. The contested provisions generally seem likely to promote contractual stability and thus to contribute both to the stability of the composition of teams in sporting competitions and to the objective of a certain balance between clubs in sporting competitions by preserving a degree of equality of opportunity. It should be borne in mind here that there is a certain specificity of sport in that football clubs need opponents in order for the system to function. (43)
65. The obligation for the player and the new club to pay compensation (44) should encourage players not to terminate their contracts without just cause and dissuade clubs from recruiting a player who has prematurely terminated his or her contract without just cause. The same goes for the sporting sanctions (45) as well as the ITC, (46) the non-issuance of which exacerbates the predicament of a player by creating a technical obstacle to his or her registration with a new club belonging to another association.
(2) Necessity
66. Next, the contested provisions must not go beyond what is necessary in order to attain the objective of contractual stability. (47)
(i) Compensation for breach of contract (Article 17.1 of the RSTP)
67. The payment of compensation for termination of contract without just cause can be considered to be reasonably necessary for obtaining the objective of contractual stability. However, the calculation of that compensation must be such that the amount owed by the party to whom the lack of just cause is attributed does not exceed what can reasonably be considered necessary to compensate the other party for the damage suffered as a result of the breach of contract and to deter – in this case the player – from terminating the contract without just cause. (48)
(ii) Joint and several liability (Article 17.2 of the RSTP) and sporting sanctions (Article 17.4 of the RSTP)
68. While it may be, from the perspective of FIFA, difficult to discern the reasons that led to the premature termination of the professional player’s contract with his or her former club, when a player is recruited by another club, holding the new club systematically liable appears to me to go beyond what is necessary to pursue the legitimate objective, in a situation in which the new club has played no role in the termination of the contract. The presumption contained in Article 17.4 of the RSTP that the new club has induced the player to commit the breach appears draconian, since I do not see how the new club can prove its ‘innocence’. While one may argue, as do FIFA and the Commission, that it is possible to derogate from the application of Article 17.2 of the RSTP, with the DRC having the power to restrict the application of the principle of joint and several liability, (49) I am of the opinion that affording such discretion to the DRC does not provide the necessary legal certainty for players and clubs, as everything hinges on the viability and expeditiousness of a procedure which appears difficult to ascertain.
(iii) International transfer certificate (Article 8.2, paragraph 7 and Article 8.2, paragraph 4 b) of Annexe 3 to the RSTP)
69. Here, Article 8.2, paragraph 7 of Annexe 3 to the RSTP carries the risk of a refusal of the issuance of the ITC, based on a mere allegation that the player has not complied with the terms of his or her contract and that the club was forced to terminate the contract because of the player’s alleged failure to comply with his or her contractual obligations. Again, one can argue that the system comprises the necessary flexibility in that, in the event of a dispute between the player and his or her former club, FIFA may, at the request of the new club and in exceptional circumstances, adopt provisional measures. (50) Again, however, these elements appear to me to be too tenuous so as to come to the conclusion that they are necessary for the attainment of contractual stability.
(c) On Article 15 of the Charter
70. Given that Article 15 of the Charter is relied on by some of the parties, I deem it appropriate to examine that provision in the present Opinion.
(1) Field of application: Article 51(1) of the Charter
71. Before turning to the material scope of Article 15 of the Charter, it must first be clarified whether that article is, in principle, applicable at all in the case before the referring court. In other words, is FIFA, in the adoption of a text such as the RSTP, bound by the Charter, in particular Article 15 thereof?
72. In my view, the answer is ‘yes’.
73. Pursuant to Article 51(1) of the Charter, which lays out the Charter’s field of application, the Charter’s provisions are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law.
74. FIFA is not stricto sensu a Member State implementing Union law.
75. However, as I have explained elsewhere, in a situation such as that of the present case, private entities such as FIFA are functionally comparable not to an EU institution, but to a Member State seeking to justify a restriction of a fundamental freedom. (51) The Court has held consistently, since the judgment in Walrave and Koch, (52) that Treaty provisions apply to an entity such as FIFA. Such an entity is treated as if it were a Member State seeking to justify a restriction of a fundamental freedom (or, as the case may be, a restriction of competition). As a consequence, it is only logical that, in such a situation, the provisions of the Charter should apply to it in the sense that it is bound by them. In other words, if the Court did not have an issue with applying Article 45 TFEU horizontally to an entity such as FIFA, the same must apply with respect to the application of the Charter. (53)
76. As for the terms ‘implementing Union law’, these have been clarified in the Court’s judgment in Åkerberg Fransson, (54) where the Court relied on the explanations to the Charter and held that the requirement to respect fundamental rights defined in the context of the European Union is only binding on the Member States when they act in the scope of Union law. (55) The Court went on to hold that, since the fundamental rights guaranteed by the Charter must be complied with where national legislation falls within the scope of Union law, situations cannot exist which are covered in that way by Union law without those fundamental rights being applicable. The applicability of Union law entails applicability of the fundamental rights guaranteed by the Charter. (56)
77. It is my contention that such a ‘mirror-principle’ is fully in keeping with the rationale of Article 51 of the Charter, which is to ensure that, within the scope of Union law, the rights contained in the Charter are observed.
78. Moreover, I should like to recall the long-standing case-law, both before (57) and after (58) the entry into force of the Charter, to the effect that, when a Member State seeks to rely on a ground of justification in the context of a restriction of a fundamental freedom, that Member State must comply with the Union’s fundamental rights.
79. Based on the above, I see no reason why in this particular instance the provisions of the Charter should not be applied in the sense that individuals can rely on them against an entity such as FIFA. (59)
80. Lastly, I should like to make another short remark on methodology. In the light of the foregoing, it is my contention that the appropriate place to examine the compatibility of the contested provisions with the Charter is within the analysis of the justification put forward by FIFA and the URBSFA. In this respect I fully concur with the view of Advocate General Saugmandsgaard Øe that ‘when the Court examines national legislation by reference to the freedoms of movement, the alleged infringement of a fundamental right guaranteed by the Charter cannot be examined independently of the question of the breach of those freedoms’. (60) Suffice it to add that this is also the way the Court appears to me to have proceeded to date: questions involving fundamental rights in free movement cases are dealt with within the justification of a restriction. (61)
(2) Material requirements of Article 15 of the Charter
81. I should like to state at this stage already that nothing in the analysis which follows regarding Article 15(1) of the Charter (62) will be substantially different from the analysis of Article 45 TFEU.
82. First, in a case such as the present one, the (fundamental and individual) subjective economic right provided for in Article 45 TFEU (63) is to be considered as functionally equivalent to Article 15 of the Charter, (64) in consequence of which I will limit myself to the considerations set out below, for the sake of completeness. (65) In this connection, I intend to point to potential problems, which will need to be resolved by the Court at some stage.
83. First, as is already apparent from the wording of Article 15(1) of the Charter, it provides for the right to choose and pursue an occupation or profession. (66) Given that the contested provisions concern the exercise of the profession of footballers, they fall within the scope of protection afforded by Article 15(1) of the Charter.
84. Secondly, as for a possible limitation of the right to exercise a profession, Article 52(1) of the Charter stipulates that any limitation on the exercise of the rights under the Charter must be provided for by law and respect the essence of those rights. Subject to the principle of proportionality, limitations may be imposed only if they are necessary and genuinely pursue objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.
85. First, it must be examined whether the RSTP is to be regarded as a ‘law’ within the meaning of Article 52(1) of the Charter. (67) Here, the intuitive and, in my view, ultimately convincing answer would be that, on an abstract level, an act such as the RSTP can constitute a ‘law’, the reasoning here again being analogous to that under Article 51(1) of the Charter, developed above: once an act of FIFA or the URBSFA is considered to be within the scope of the Charter in a situation such as that of the present case, then that act is to be considered a ‘law’ within the meaning of Article 52(1) of the Charter. I would, in other words, opt for a functional approach as to the definition of the term ‘law’ and consider the RSTP as a ‘material law’, given that it is formulated and intended to be applicable in an abstract manner. While I am aware of the constitutional significance of such a finding, which would surely merit a profound examination in a situation where Article 15 of the Charter is not, as in the case at issue, ‘consumed’ by Article 45 TFEU, I do believe that this is a consequence of the extension of the latter provision to entities such as FIFA.
86. Next, the rules in question must be adequately accessible and formulated with sufficient precision. (68) This seems to me to be the case as regards the RSTP.
87. Finally, as regards the remaining test of the limitation (identification of a ground for justification, proportionality), given that it is functionally equivalent to that under Article 45 TFEU, I can refer to the corresponding considerations developed above in the present Opinion.
IV. Conclusion
88. In the light of the foregoing, I propose that the Court reply to the questions referred by the Cour d’appel de Mons (Court of Appeal, Mons, Belgium) as follows:
(1) Article 101 TFEU must be interpreted as precluding rules that have been adopted by an association responsible for organising football competitions at world level and implemented both by that association and by its member national football associations, providing that a player and a club wishing to employ him or her are jointly and severally liable in respect of the compensation due to the club whose contract with the player has been terminated without just cause and providing that an association to which a player’s former club belongs is entitled not to deliver the international transfer certificate required if the player is to be employed by a new club, where there is a dispute between that former club and the player, if it is established, first, that those decisions by associations of undertakings are liable to affect trade between Member States and, second, that they have either as their object or their effect the restriction of competition between professional football clubs, unless, in the second of those scenarios, it is demonstrated, through convincing arguments and evidence, that they are both justified by the pursuit of one or more objectives that are legitimate and strictly necessary for that purpose.
(2) Article 45 TFEU must be interpreted as precluding the application of rules that have been adopted by an association responsible for organising football competitions at world level and implemented both by that association and by its member national football associations:
– providing that a player and a club wishing to employ him or her are jointly and severally liable in respect of the compensation due to the club whose contract with the player has been terminated without just cause, unless it can be proven that it is genuinely possible, within a reasonable time frame, not to apply this principle where it can be established that the new club was not involved in the premature and unjustified termination of the player’s contract;
– providing that an association to which a player’s former club belongs is entitled not to deliver the international transfer certificate required if the player is to be employed by a new club, where there is a dispute between that former club and the player, unless it can be proven that effective, genuine and expeditious provisional measures can be taken in a situation where there has been a mere allegation that the player has not complied with terms of his or her contract and that the club was forced to terminate the contract because of the player’s alleged failure to comply with his or her contractual obligations.