The journey of Gibraltar’s Football Association – Part 1: progress to UEFA & FIFA membership

Published 14 May 2015 | Authored by: Philip Vasquez, Julian Santos

Between a rock and a hard place.” This is the full legal analysis on the Gibraltar Football Association’s 18-year journey to UEFA and FIFA membership, and the teething issues that they have faced within the local professional leagues.

Gibraltar is a small British Overseas territory at the southernmost tip of the European continent at the foot of the Iberian peninsula and is home for some 29,000 inhabitants. Being one of the oldest football associations in the world, it was only on 24 May 2013 that Gibraltar’s Football Association was named as UEFA’s 54th member nation. Whilst this story has frequently appeared in the international media, this article will go on to analyse and discuss the legal backbone of the story at depths which have not been discussed on the subject to date.

Part 1 on this article will explore the key legal milestones of the progress of Gibraltar Football to date including the Gibraltar Football Association’s (“the GFA”) applications to join UEFA and FIFA, which have spanned the best part of two decades. In Part 2, the authors will go on to discuss the subsequent growing pains of the local football association in having to regulate and professionalise the nation’s favourite game.

Gibraltar’s Football History in a Snapshot

The GFA stands as one of the top 10 oldest footballing associations in the world, as it was formed in 1895, and the association’s history tells a story of a footballing nation’s confidence and ability going from strength to strength.1

Following the creation of its first league competition in 1907, Gibraltar soon hosted two senior divisions and junior leagues by 1909. Gibraltar then developed to host a “Golden Era” of football between 1949 and 1955 when the likes of Admira FC, Wacker FC, Real Valladolid and Real Madrid side all played Gibraltar’s national side.2 In 1965 and 1973 an English FA selection managed by Alf Ramsey also played a Gibraltar FA side.

More recently, the GFA first applied for FIFA membership in 1997 and subsequently for UEFA in 1999. Following numerous appeals to the Court of Arbitration for Sport (“CAS”), Gibraltar was admitted as UEFA’s newest member in 2013 and subsequently its national team has been participating in Group D of the UEFA Euro 2016 Qualifying Tournament, facing the likes of Germany, Ireland Scotland and Poland. In September 2014, Gibraltar’s renewed application for FIFA membership was denied.

Today, the GFA boasts around 2,600 registered players playing in two senior men’s divisions, reserve divisions, a Ladies league and “Futsal” competitions as well as various youth leagues from under 7 to under 15 levels.

Gibraltar’s Entry into UEFA

The Facts3

The progress of Gibraltar’s application to become a member of UEFA tells a story of 16 years of persistent work towards its applications, 3 CAS decisions and numerous visits by UEFA and FIFA delegates to the small nation. What was initially understood to be a formality in the GFA’s application process to FIFA would turn out to be the biggest uphill struggle and test of persistence of one of the world’s smallest footballing associations.

The story of the application process begins in January 1997 when Gibraltar first applied for FIFA membership. Through the support of the English Football Association (“The FA”) on 27 November 1997, FIFA wrote to the GFA on March 3 1999 confirming that the “preliminary procedure” was completed, and that “consequently, FIFA may submit the file to the confederation concerned for the second phase of the procedure (evaluation of the organisation for a period of at least two years)”. In that same letter, FIFA stated that “according to article 4.7 of the FIFA Statutes the confederation concerned (UEFA) shall decide whether to grant provisional membership or associate membership to the applicant association”.

Soon after, the GFA presented its case to UEFA and was told that its representatives would be making an on-site visit to Gibraltar’s facilities and that no final decision would be taken until the year 2000. However, in 2000 UEFA informed the GFA that FIFA was in the process of reviewing its affiliation procedure rules and that UEFA would not be able to give the GFA more information on its application until that time. Naturally, the GFA questioned this and stated that the “present on-going review of affiliation procedure rules” within FIFA should not affect the GFA’s application, which had been made before such a review was commenced. The GFA went on to express its concern that the site visit of the facilities that should have occurred by 1999 had not taken place, and therefore insisted that it be given “the necessary assurances that our application is being processed as per the present applicable procedures”.

In response, UEFA and FIFA sent a joint delegation from their associations to visit the British nation between May 8-10, 2000. The UEFA delegation went on to produce a report stating that Gibraltar should be admitted to UEFA on a provisional basis under 3 conditions: (i) Gibraltar teams could not enter club competitions, or senior and Under-21 national-team competitions immediately, but only UEFA’s youth, women’s and amateur competitions; (ii) the football infrastructure in Gibraltar must correspond to the UEFA requirements at the time of entering the relevant competitions; and (iii) the GFA’s statutes had to be adapted to UEFA’s requirements. This report was supposed to be submitted to the UEFA Committee at its next meeting, which was scheduled for the 25-26 August 2000.

Instead, UEFA’s Executive Committee decided to postpone its decision concerning the GFA’s provisional membership until its next meeting, which was to take place in October 2000, and to call a meeting between UEFA, the English FA and the Spanish FA in September. UEFA postponed its decision on the GFA once again as the meeting between the aforementioned parties did not take place until November. It was at this point that the UEFA Executive Committee decided that it would need independent legal advice in order to evaluate the application. It was around this time that the Spanish Football Federation (RFEF), which had always been vehemently opposed to the GFA’s application, threatened to take the extreme action of pulling its club and national sides out of all European competition if UEFA were to accept the GFA as its newest member. Angel Villar, the President of the Federation at the time, stated:

"We are going to oppose with all our forces, with tooth and nail, without any concession, the possibility that Gibraltar will be recognised as a member of Uefa. We will use every measure at our disposal. Spain will not participate in any tournament in which Gibraltar is involved if its application succeeds. There is no going back."4

In December 2000, UEFA then set up an expert legal panel to evaluate the GFA’s application based on the FIFA Statutes and UEFA Statutes. The panel heard the submissions of the Spanish, English and the Gibraltar Football Associations. On 27 August 2001 the panel issued its unanimous report stating that according to the UEFA Statutes, as they were in force on December 24 1997, they rejected all Spanish objections to the GFA’s application and that the GFA was entitled to provisional admission as a member of UEFA. The report also made a suggestion to “amend the UEFA Statutes” to avoid similar problems “in the future” by making "an amendment to the effect that only UN-recognised States may apply for admission to and membership of UEFA".

Contrary to the procedure determined from the outset, UEFA refused to forward a copy of the expert panel’s report to the GFA. UEFA then informed the GFA that at the next Congress in October 2001, a request for a change to the UEFA Statutes, particularly concerning the provision of UEFA membership, had been made and that UEFA would not be able to provide the GFA with a copy of the report until the GFA was part of the UEFA family. At this time FIFA also announced plans that it was planning to change their rules on membership.

At the subsequent UEFA Congress on 7 September 2001, UEFA once again postponed its decision to admit the GFA as a provisional member. It was at this point that Kazakhstan's application for membership, which was filed shortly after their exit from the Asian confederation in 2001, was considered. Kazakhstan went on to become a member of UEFA in April 2002.

In October 2001 the UEFA Congress approved the change of the UEFA Statutes. The change included a new version of Article 5 of the Statutes, which stated that UEFA membership would only be open to associations in a country “recognised by the UN as an independent state”.5 It was this change that would spark controversy for Gibraltar’s applications to UEFA for the 12 years that followed. UEFA then sought to apply this new Statute to Gibraltar's application. However, on April 26 2002, the GFA wrote to UEFA stating that it considered UEFA’s decision to change the rules with purported retrospective effect in such a way as to make the GFA’s application incapable of success to be illegal. It was at this point that the GFA also requested that UEFA accept the jurisdiction of the CAS to decide the matter in the form of an arbitration, which UEFA accepted in July 2002. The arbitration hearing was held on May 27, 2003 at the Villa du Centenaire in Lausanne. In October 2003 CAS gave its decision (CAS 2002/O/410) and ordered that UEFA was to ‘decide on the GFA’s application for membership, before 31st March 2004, on the basis of the UEFA rules applicable at the time when the application was made’.

On 22 March, the Executive Committee of UEFA refused the GFA’s application for membership, despite meeting all sporting requirements and eligibility criteria. The Committee’s reasoning for refusal was that the GFA did not fulfil the criteria for FIFA membership. Consequently on the 12 May 2005 the GFA filed a new case to be decided by the CAS. In July 2006 the Court ordered that UEFA was to admit the GFA as a provisional member at its next Executive Committee meeting and that the GFA’s application was to be considered and proceed at the next UEFA Congress. By this point the Government of Gibraltar had spent £175,000 on legal fees for the GFA.

On 11-12 July and 4-5 October 2006 the Executive Committee of UEFA had met and on both occasions had not taken decisions on the GFA’s application for membership, resulting in a further breach of the CAS’s order. In the latter meeting of October, UEFA admitted Montenegro FA as a provision member and adjourned considering the GFA’s provisional membership until the 7-8 December 2006 so that they could ‘examine new documents which were submitted shortly before the meeting’.6

At the subsequent UEFA Congress on 8 December 2006, UEFA stated that it had “no other choice” but to admit the GFA as a provisional member of the UEFA family.7 The matter was therefore put to a vote at UEFA’s Congress in Düsseldorf on 26 January 2007. Gibraltar’s application to become a full member of UEFA was rejected, with 45 votes against, 3 in favour (being England, Scotland and Wales) and 4 undecided.8 At the same time, Montenegro was admitted as the 53rd full member of UEFA.9

Soon after this setback the GFA returned to the CAS to resolve the issue in 2007, and again in 2011 after an appeal, and it was again ruled that Gibraltar could not be refused membership because of the amended membership rules, which were not established until after Gibraltar’s 1999 application.

Following the UEFA Executive Committee’s acknowledgement of the CAS’s decision of 2011,10 the next significant step for Gibraltar was made on 21 March 2012 where UEFA’s executive committee agreed a road map of financial and educational support for Gibraltar’s journey to full membership.11 This roadmap was to run until the UEFA Congress of 2013 where member associations were to vote on the admission of new members. The GFA spent the interim period lobbying the various members who would vote on its application for support.

On 1 October 2012 UEFA’s Executive Committee admitted the GFA as a provisional member again,12 pending a vote at its Congress in May 2013 to make it a full member. Eventually, after the GFA’s exhaustive marketing campaign to increase the awareness of its application, which had a total audience reach of 2 billion people globally,13 Gibraltar was successfully accepted as UEFA’s 54th member nation on the 24 May 2013 with 51 votes in favour and 2 against, by Spain and Belarus.14

Legal Analysis

The turning point in the GFA's journey towards UEFA membership was the decision of CAS in 2003,15 which determined that the immediate application of the re-enacted version of Article 5 of the UEFA Statutes was invalid.

In the absence of a choice by the parties as to the applicable law, all aspects of the dispute, including the interpretation of the UEFA and FIFA Statutes, were to be assessed in accordance with Swiss Civil Law (Article R45 of the Code). In addition, there were widely recognised principles of law, such as fairness and the requirement of good faith, which could be applied by the CAS Panel regardless of their explicit presence in the relevant statutes. As explained above, at the time when the GFA had applied for membership Article 5 of the UEFA Statutes did not restrict membership to UN-recognised territories. Article 5 paragraph 1 prior to its change on 11 October 2001 stated "Membership of UEFA is open to national football associations situated in the continent of Europe which are responsible for the organisation and implementation of football-related matters in their particular territory”.16 The new requirement on the other hand states:

Membership of UEFA is open to national football associations situated in the continent of Europe, based in a country which is recognised by the United Nations as an independent state, and which are responsible for the organisation and implementation of football-related matters in the territory of their country.17

It was here that the GFA argued that the very purpose of this introduction was to block the GFA's application following pressure from the Spanish FA.

The CAS found that the GFA did satisfy the old version of Article 5 of the Statutes. Indeed, the Expert Panel appointed in December 2000 by the UEFA Executive to advise it on this very issue had reported that "given that Gibraltar is a European association ... which has become autonomous in a sporting respect, and given that the GFA indisputably exercises sole responsibility for the organisation and structure of football in its territory, Article 5 paragraph 1 can only be interpreted as to mean that the GFA from a legal perspective fulfils the criteria of the UEFA statutes for becoming a UEFA member”. The UEFA administration had also expressed the same opinion in a report in July 2000. The CAS decision also noted that UEFA's interpretation of the older version of Article 5 had resulted in the admission of other territories that do not enjoy independent statehood such as Scotland, Wales and the Faroe Islands. In the circumstances, UEFA's arguments to the contrary at the hearing were surprising.

However, the real issue was whether the newer version of Article 5 of the UEFA Statutes applied. In determining this point, the CAS applied a long-established distinction in Swiss Civil law between purely procedural rules (which could apply immediately on adoption) and rules which were at least partly substantive (which could not be applied retrospectively). The Panel found that Article 5 set out the substantive conditions that any applicant had to meet in order to become a member, the Swiss Civil law's general principle of non-retroactivity of substantive laws applied. Further, the Panel decided that even if Article 5 were deemed to be purely procedural, its application would violate the widely recognised legal principles of fairness and good faith. The Panel also had particular regard to the principle of ‘venire contra factum proprium (the prohibition of inconsistent behaviour), a principle that provides that where the conduct of one party has raised legitimate expectations on the part of the second party, the first party is barred from changing its course of action to the detriment of the second party. In this context, perhaps one of the most striking of the CAS's findings was that "one of the main purposes for the amendment proposal made by the UEFA Executive Committee was to prevent the GFA's application from succeeding", and that UEFA's change of attitude and reluctance to decide the GFA's application may have been influenced by the Spanish FA's very public political pressure. These findings gave a very unfavourable impression of UEFA's decision-making process and transparency.

One final matter addressed by the CAS was the principle of freedom of association, which included a right to refuse an application for membership, even if all statutory conditions were fulfilled. However, this principle was not unlimited, and it was the effect that refusal of the GFA's admission would have on footballers in Gibraltar that the CAS was most concerned with. The CAS considered that a refusal of the GFA's application, considering UEFA’s monopolistic position in relation to organisation of football in Europe, would have the effect of a boycott, and was therefore invalid in the absence of objective and justified reasons. Further, UEFA had at all stages given the GFA the legitimate expectation that it would not refuse its application without justification if it met all the necessary conditions, and had therefore waived its right to refuse the GFA's application without justification. The CAS stopped short, however, of definitively determining that associations with a monopolistic position did not have an absolute discretion as to whether to accept applications for membership.18

IUEFA numbers1t was this finding by the CAS in 2003 that proved to be the watershed moment for the GFA, even though it was, incredibly, another 10 years before the GFA was finally accepted into the UEFA fold. This decision gave the GFA's application legitimacy, which provided the foundations for the subsequent CAS decisions of 2006 and 2012, where the GFA ultimately prevailed. Whilst these subsequent judgments have not been released due to a possible confidentiality agreement between the parties that the award will not be communicated publicly, the authors’ understand that the decisions of 2006 and 2012 respectively each reaffirmed, with increasing assertiveness, that UEFA was compelled to admit Gibraltar as a member of its body.

Current FIFA and UEFA members include several federations that cannot be said to represent independent nations, such as the UK Home Nations (England, Northern Ireland, Scotland and Wales), the Faroe Islands, Puerto Rico, Chinese Taipei, Tahiti and New Caledonia. French Guiana, Martinique, Guadeloupe and Saint Martin each have national teams which, despite not being FIFA members, are allowed to compete at the CONCACAF confederation level. 

 

Gibraltar’s application to FIFA

Following Gibraltar’s successful entry into UEFA the GFA has returned its focus to its application to become part of the FIFA family, in the hope of achieving this in time for the 2018 FIFA World Cup qualifying competition. As previously mentioned, Gibraltar’s application process to FIFA commenced in 1997 when FIFA set UEFA membership as a prerequisite to its membership. Despite the GFA’s recent UEFA entry, Sepp Blatter, president of FIFA, on September 26 2014 stated that Gibraltar did not qualify for membership of FIFA as it was not an independent state recognised by the international community as required by the FIFA Statutes, August 2014 edition.19

The pivotal statute for Gibraltar’s case for admission hinges on the changes that have been made to Article 10 of the FIFA Statutes and its subsequent definitions of a “Country”.20 Following FIFA’s on-going review of its affiliation procedure rules in early 2000 and its notification to UEFA in October 2001 that it will be changing its rules, FIFA eventually made changes to its statutes in 2004.

In February 2015, the GFA announced its decision to appeal against FIFA’s decision to deny membership. The appeal was made to the Court of Arbitration for Sport and is due to be heard on 21-22 May 2015, a week before the FIFA Congress on May 29 where any new members may be admitted to FIFA. Should Gibraltar be approved as a new FIFA member association by this date, it may enter the draw for the World Cup Qualifiers on 25 July 2015. It is likely that Gibraltar will miss this window as the application is presumably being pursued under the ordinary procedures of CAS.21 Unless the parties have pursued an expedited provisional measure under the CAS rules, the CAS is unlikely to release its decision until August-October 2015.22

With regards to the substantive submissions which are likely to appear before CAS in May, it is likely that the GFA will argue that the requirement referred to by FIFA in its refusal of the GFA’s application on 26 September 2014 did not form part of the FIFA Statutes at the time when the GFA’s original application in January 1997 was made. The argument is therefore very similar to that advanced by the GFA in support of its application for UEFA membership. The GFA is likely however to face an argument which is unlikely to have been submitted by UEFA in the CAS decision of 2012.

In defence to the GFA’s arguments it is expected that FIFA will argue that the GFA’s applications after January 2007 were to be decided under the new FIFA Statutes and therefore Gibraltar would not satisfy Article 10 of the Statutes. The basis for FIFA’s argument will stem from the fact that Gibraltar was not admitted as a member to UEFA at the Congress in Düsseldorf on 26 January 2007, where the congress voted heavily against the application. As a result of Gibraltar’s failure to become a member at this point, FIFA’s argument is that their application to become a FIFA member from 1997 lapsed and therefore if Gibraltar were to apply to FIFA again, they would have to do so under the new rules.

Until the CAS hearing and decision on whether Gibraltar should be admitted as a member of FIFA, it is unclear whether those international associations who have played Gibraltar in the Euro Qualifiers, such as Germany, Ireland and Scotland, will have those matches recognised by FIFA as matches which contribute towards points in FIFA's ranking system. Understandably, the respective international associations involved may be placed at an unfair advantage or disadvantage as a result.

In Part 2 of this article, the authors will turn to look at the growing pains of the local football association in having to regulate and professionalise the nation’s favourite game.

 

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About the Author

Philip Vasquez

Philip Vasquez

Philip Vasquez is a Barrister and Acting Solicitor who regularly advises on commercial law, regulation, technology and dispute resolution, Philip also appears regularly in the Magistrates & Supreme Court. Philip is highly active in supporting entrepreneurship and innovative businesses in Gibraltar as an organiser of the Gibraltar Startup Community. Philip is also a co-opted member of the Gibraltar Bar Council.

@PhilipVasquez

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Julian Santos

Julian Santos

Julian is a barrister at 5RB specialising in media and entertainment law, including defamation, privacy, harassment and data protection.

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