What constitutes an ‘Official Match’ under the FIFA Regulations? The case of Ben Arfa

Published 01 May 2015 | Authored by: Lloyd Thomas

As the 2014/2015 season draws to a close and clubs begin considering their recruitment policy for the 2015/2016 season, they will doubtless bear in mind the recent case concerning the attempted acquisition by French club OGC Nice (“Nice”) of the former Newcastle player, Hatem Ben Arfa (the “Player”) and FIFA’s application of its Regulations on the Status and Transfer of Players (the “FIFA Regulations”).1

The case concerned FIFA’s application of Articles 5.3 and 5.4 of the FIFA Regulations, which (a) prescribe that a player can be registered with a maximum of three clubs during one season and (b) prevent a player from playing official matches for more than two clubs in a season. This article considers FIFA’s application of its FIFA Regulations and analyses the lessons that can be learned from its approach.

 

Factual Background

At the beginning of the 2014/2015 season, the Player was registered as a player for Newcastle United. On 2 September 2014, he was loaned to Hull City on a year-long basis.2 Prior to this move, the Player had not played for Newcastle’s first team in that season. He had however made an appearance for Newcastle’s Under-21 side in a match against Reading in the Professional Under-21 Development League on 25 August 2014.

During the first half of the season, the Player played nine times for Hull City. However, the loan was brought to an end on 18 December 20143 and, on 4 January 2015, the Player’s playing contract with Newcastle was terminated by mutual consent.4 The Player therefore became a free agent.

On 5 January 2015, it was reported that the Player had completed a move to Nice.5 However, on 14 January 2015, Nice issued a statement on its website6 in which it stated that FIFA had denied the Player clearance7 to play for Nice during the 2014/2015 season, as a result of the application of Article 5.3 of the FIFA Regulations. Article 5.3 states that:

"Players may be registered with a maximum of three clubs during one season. During this period, the player is only eligible to play official matches for two clubs...8

In its statement, Nice referred to a lettersent by FIFA to the French Football Federation (the “FFF”) in which FIFA stated that the Under-21 Professional Development League match played between Newcastle United’s Under-21 team against Reading on 25 August 2014:

must be considered as official in the sense of the regulation

and that it:

…must therefore be taken into consideration in determining the application of article 5.3 of the regulations on the status and transfer of players”.9

In short, FIFA stated that the Player could not play for Nice in the 2014/2015 season as he had already played official matches for Hull City and Newcastle United’s Under-21 team in that season (i.e. for two clubs, the maximum permitted in one season).

On 22 January 2015, Nice issued a further statement on its website, in which it stated (in translation):

"As some people are obviously having trouble interpreting the English federation's first letter sent at the start of January, OGC Nice appreciate that the FA has written another letter on Wednesday to dispel any ambiguity.It is perfectly explicit. Crucially, you can read therein the following phrase: 'We do not consider U21 games to be official matches'.This confirmation leaves no doubt as to its interpretation, especially as the English federation has taken care to reinforce this position in its letter.We hope that with this clarification, the relevant bodies can now announce their decision without hesitation."10

On 30 January 2015, the French Football League (the “LFP”) stated11 that although the Player could not play for Nice in the 2014/2015 season, he could still be registered with the club pursuant to article 5.3 of the FIFA Regulations and article 212 of the LFP Regulations. Further, the LFP stated that the Player could train with Nice in “secure legal conditions”.12

It should be noted that, at the time of writing this article, the Player is a now again a free agent, having left Nice.

Relevant Regulations

Article 5.3 of the FIFA Regulations states that:

Players may be registered with a maximum of three clubs during one season. During this period, the player is only eligible to play official matches for two clubs...13

Further, Article 5.4 of the FIFA Regulations states that:

Under all circumstances, due consideration must be given to the sporting integrity of the competition. In particular, a player may not play official matches for more than two clubs competing in the same national championship or cup during the same season, subject to stricter individual competition regulations of member associations.14

Applying those FIFA Regulations to the Player’s playing history, FIFA determined that the Player had already played in official matches for two clubs in the 2014/2015 season and that he was therefore precluded from playing for a third. The centre of the dispute in this case is therefore what constitutes an “official match” for the purpose of the FIFA Regulations.

Official Matches” are defined in the FIFA Regulations as:

…matches played within the framework of organised football, such as national league championships, national cups and international championships for clubs, but not including friendly and trial matches”.15

This definition is reiterated in the context of sporting just cause, under Article 15 of the FIFA Regulations.16 This Article provides that an established professional who has, in the course of the season, appeared in fewer than ten per cent of the official matches in which his club has been involved may terminate his contract prematurely on the ground of sporting just cause. In FIFA’s commentary to the FIFA Regulations,17 FIFA explains that, for the purposes of sporting just cause, an appearance in an “Official Match” includes those matches played in:

…the championship, as well as national and international cup matches.”

According to the statements published on Nice’s website, both Nice and the English Football Association disagreed with FIFA’s finding and considered that the match played on 25 August 2014 between Newcastle United and Reading in the Professional Under-21 Development League to be an Official Match for the purpose of the FIFA Regulations.

The FIFA Regulations do not specifically address the status of matches played in the Professional Under-21 Development League but FIFA is clear that they constitute Official Matches.

 

FIFA jurisprudence

The only decision of which this author is aware in which FIFA considers what does, and what does not, constitute an Official Match is the decision of the Single Judge of the Players’ Status Committed (the “Single Judge”) passed on 19 March 2013.18 In that case, the Single Judge considered what constituted an Official Match for the purpose of a dispute between two clubs concerning a bonus clause in a transfer agreement. That clause stated as follows:

An additional transfer fee of €50,000 (fifty thousand Euros) shall be paid by Club K once the aforementioned footballer has been on the field ten times at the kickoff in an official competition game.

The player in question had appeared in nine league matches and one cup match for the Respondent and a dispute had therefore arisen as to whether entitlement to the bonus had arisen. While the case did not concern the application of Article 5.3 of the FIFA Regulations, it nonetheless required the Single Judge to consider what was meant by “official competition game”, as the parties had not defined this term. In this respect, the Respondent argued that cup matches did not constitute “official competition games”, while the Claimant contended that such matches did fall within this definition.

The Single Judge referred to the definition of Official Matches in the FIFA Regulations19 and held that:

…the bonus clause refers to an “official competition game”, without differing between league or cup games. Therefore, the Single Judge, considered that the relevant clause was clear and unambiguous, concluded that an “official competition game” covered both league and cup matches, since both league as well as cup matches are part of competitions within the framework of organized football. In this respect, the Single Judge also referred to point 5 of the definitions section of the Regulations which defined “official matches” as follows: “matches played within the framework of organized football, such as national league championships, national cups and international championships for clubs, but not including friendly and trial matches.20

As a result, the Single Judge decided that the player had appeared in 10 official competition games and that the bonus was payable.21

Yet neither FIFA’s jurisprudence nor its Regulations go so far as to consider the correct categorisation of a match played in the Professional Under-21 Development League and, as such, the rationale behind the categorisation of the Professional Under-21 Development League as an Official Match is less clear.

The Professional Under-21 Development League is sub-divided into two divisions, with teams given places in either Division 1 or 2 on the basis of their performance in the previous season. The winner of Division 1 will be crowned the champion, while the bottom two teams of Division 1 are relegated to Division 2, with the top two teams of Division 2 being promoted to Division 1.22 The Professional Under-21 Development League is arguably, therefore, a “national league championship” which is “played within the framework of organised football” for the purposes of “Official Match” as defined by FIFA.

Accordingly, FIFA’s decision in respect of the Player is seemingly based on a sensible rationale. Yet taking this approach leads to some difficult questions, for example if the matches played in the Professional Under-21 Development League are Official Matches, what of matches played in the Barclays Under-18 Premier League,23 the Barclays Under-21 Premier League Cup24 the FA Youth Cup?25

Matches played in these competitions undoubtedly fall within the framework of organised football and are respectively national league championships and cup competitions. The FA Youth Cup for example is a national tournament involving the youth teams of both professional and non-professional football clubs, which is played within the framework of organised football. One could therefore reach the conclusion that these are also Official Matches for the purpose of the FIFA Regulations. Whether FIFA intends the ambit of its Regulations to extend so far is unclear.

This also raises a question about the application of Article 15 of the FIFA Regulations on sporting just cause.26 As noted above, this Article states that an established professional who has, in the course of the season, appeared in fewer than ten per cent of the Official Matches in which his club has been involved may terminate his contract prematurely on the ground of sporting just cause. The rationale for this regulation is to allow an established player to terminate his playing contract if he is not playing at a level commensurate to his professional development and therefore provides him with the opportunity to progress his professional career elsewhere. If one follows the conclusion that youth competitions such as the Barclays Under-21 Premier League Cup constitute Official Matches for the purposes of the FIFA Regulations, then it is conceivable that an established professional who is sent to play with his team’s Under-21 side and ends up playing in more than ten per cent of the Under-21 side’s matches, will have forfeited his right under the FIFA Regulations to rely upon sporting just cause to terminate his playing contract. This, it is submitted, cannot be what FIFA intends.

In any event, if the rationale of Article 5.4 of the FIFA Regulations is to protect “the sporting integrity of the competition”, two further questions arise:

  1. If the transfer of a player is international and the two clubs are not involved in any competition together, is there really any threat to the sporting integrity of the competition?
  2. Shouldn’t that rule also be applicable to youth competitions such as the FA Youth Cup or the Barclays Under-18 and Under-21 Premier Leagues? Simply because those youth competitions do not typically involve professional football players does not alter the potential threat to the competition’s sporting integrity.

 

Conclusion

On the basis of FIFA’s interpretation of the FIFA Regulations, the Player was prevented from playing for another club in the 2014/2015 season as soon as he left Newcastle. Yet both Nice and reportedly the FA interpreted the FIFA Regulations differently, believing that the Player had played Official Matches for only one club in that season.

FIFA’s decision is defensible given that the Professional Under-21 Development League is a national league championship that is played within the framework of organised football. Further, organised youth football is being given increased primacy in view of the worldwide desire to improve youth development programmes within professional football. It is hoped that these programmes will result in clubs spending less on transfer fees which, it is argued, leads to a competitive balance between bigger and smaller clubs.

Yet there remains some ambiguity as to how far the definition of Official Matches extends. On the basis of the definition set out in the FIFA Regulations, the decision of the FIFA Single Judge and the determination of FIFA in the case of the Player, it can reasonably be concluded that the definition of Official Matches extends to league and cup competitions played in youth tournaments such as the FA Youth Cup and the Barclays Under-18 and Under-21 Premier Leagues. It also raises difficult questions about the application of Article 15 of the FIFA Regulations on sporting just cause.

Ultimately, whilst there remains a degree of ambiguity regarding the status of certain league and cup competitions, clubs should ensure they take especial care to review a player’s playing history when considering a potential acquisition, particularly if the proposed transfer is due to take place mid-season. Unless a match is clearly designated as a friendly or a trial match, it is advised that clubs should err on the side of caution when assessing such playing history.

 

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About the Author

Lloyd Thomas

Lloyd Thomas

Lloyd Thomas is an associate in Squire Patton Boggs’ Litigation department and is part of the Sports Law team based in its London office.

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