FIFA’s “6+5 Rule” - a response to the INEA opinion
Published 11 October 2009 By: Ian Lynam
The topic of foreign player quotas in club football has helped shape modern sports law through decisions such as Dona¹, Bosman² and Simutenkov³. Of late, FIFA has attempted to further alter the sports law landscape with their determined attempts to introduce the "6+5 rule”4 (the "Rule").
FIFA’s stated view5 is that the unchecked movement of footballers within the EU, resulting from the ECJ’s rejection of the “3+2” rule in Bosman, has resulted in clubs losing their national identity, national team football being weakened, a loss of competitive balance in the club game and a reduced emphasis on the development of young players.
The Rule is FIFA’s proposal to address these issues. The Rule’s first formal appearance came in the Memorandum of Understanding between FIFA and FIFPro dated 2 November 2006 and, after a period of further consultation, FIFA’s Congress passed a resolution, on 30 May 2008, by 155 votes to 5, to “fully support the objectives of "6+5"…”.
FIFA’s staunch support of the Rule has only been matched by the European Union’s steadfast opposition. On 9 May 2008, the European Parliament voted to reject the Rule, in almost a mirror image of the FIFA vote, by 518 votes to 49. The European Commission followed course soon after by “showing the proposal a red card”6, on 28 May 2008, on the basis that it “would constitute direct discrimination on the basis of nationality” and was therefore in breach of Article 39 of the EC Treaty.
Most recently, FIFA commissioned the Institute for European Affairs (“INEA”) to publish an opinion on the compatibility of the Rule with EC Law (the “INEA Opinion”). The INEA Opinion (dated 24 October 2008, released on 26 February 2009) is the result of “a full independent review", funded by FIFA and prepared “without preconceived notions as to the result as…FIFA, [had] no supervisory authority”.
The INEA Opinion reaches the conclusion that the Rule is compatible with EC law. Perhaps unsurprisingly, this does not appear to have altered the European Commission’s views on the subject. Jan Figel, the European Commissioner for Education, Training, Culture and Youth, has been quoted as saying that “the report by INEA is not adding new significant insights into this debate” and “it’s as simple as that: the 6 + 5 rule cannot apply within the EU".7
The intention of this article is to examine some of the arguments put forward in the INEA Opinion and to examine whether FIFA’s continued pursuit of the Rule is the best approach for addressing their undoubtedly laudable objectives.
Key arguments put forward in the INEA Opinion
The Rule does not constitute direct discrimination as it discriminates on the basis of eligibility for the relevant national side and not on the basis of nationality.
The key finding of the INEA Opinion, and where it fundamentally varies with the conclusions to date of the European institutions and most commentators, is that the Rule does not represent a directly discriminatory restriction but merely an indirectly discriminatory one.
A directly discriminatory restriction is a rule which relies on nationality as the basis for disadvantageous treatment. An indirectly discriminatory restriction is a rule which, although not expressly discriminating on grounds of nationality, nevertheless has the effect of discriminating on ground of nationality. The key difference being that directly discriminatory restrictions are regarded as contrary to the fundamental principles of European law and can only be justified in very rare circumstances whereas indirectly discriminatory restrictions may be objectively justified on the grounds of Cassis de Dijon type “mandatory requirements”.
The INEA Opinion concludes that the Rule represents indirect discrimination as it is based on eligibility for a national side and not expressly based on nationality. I would respectfully disagree with this conclusion.
Nationality is the fundamental and mandatory requirement stipulated by FIFA to qualify to play for a national side.8 In certain cases, further criteria must also be met9 but no non – national can be eligible to play for a national side. All non-nationals are therefore necessarily disadvantaged, in which regard the Rule is similar to the "Italians only" rule in Dona which restricted participation in Italian professional football to those affiliated to the Italian football federation. In practice, such affiliation was only available to Italian nationals and the rule was therefore found to be incompatible with the European Treaty¹º. The key point being that rules which either factually or legally disadvantage all persons of one group must be regarded as directly discriminatory¹¹.
The Rule does not represent direct discrimination as it applies only to the starting XI and clubs remain free to recruit players who are ineligible for the national team.
As the ECJ held in Bosman, “the fact that [a rule] concern not the employment of such players, on which there is no restriction, but the extent to which their clubs may field them in official matches is irrelevant. In so far as participation in such matches is the essential purpose of a professional player's activity, a rule which restricts that participation obviously also restricts the chances of employment of the player concerned.”¹²
The INEA Opinion argues that the Rule “restricts neither the signing nor the work of players”¹³. In practice, however, the Rule will restrict clubs from signing ineligible players. The size of a club’s squad is limited by, amongst other factors, its financial resources and the need to keep players happy by giving them adequate game time. The introduction of the Rule would therefore necessarily require clubs to prioritise the recruitment of eligible players at the expense of non-eligible players.
EC law does not apply to the Rule as it is "a rule of the game purely motivated by the needs of sport".
As first set out in Walrave, and echoed by the ECJ in Bosman and on numerous occasions since, "sport is subject to Community law only in so far as it constitutes an economic activity"14. This has more recently been further clarified in Meca-Medina15 with the ECJ confirming that "the mere fact that a rule is purely sporting in nature does not have the effect of removing from the scope of the Treaty the person engaging in the activity governed by that rule or the body which has laid it down”16.
In any event, the ECJ has never accepted that nationality restrictions (other than in relation to the selection of national sides) can constitute “purely sporting rules” This argument has been rejected in Bosman17, Kolpak18 and Simutenkov19 indicating that nationality restrictions for clubs will never constitute “purely sporting” rules.
The INEA Opinion’s arguments that the judgment in Bosman is less relevant today as“reality has developed in a way contrary to the prognoses made by the European Court of Justice at the time"²º is undermined by the fact that the ECJ has reinforced, as recently as in the Simutenkov decision in 2005, the fact that nationality limitations cannot be justified on sporting grounds.
Whether the Rule is "fit for purpose".
As I’ve stated above, the aims advanced by FIFA are laudable and clearly in the best interests of football. Leaving the question of legality to one side, I would like to briefly address the question of whether the Rule is “fit for purpose” to address FIFA’s aims.
(a) Strengthening national team football/improving the competitive balance at national level
Contrary to public opinion, an increased number of foreign players in a domestic league is not necessarily damaging to the strength of the national side. A paper published by Brian Sturgess in December 2008 examined the performance of the English national side during the Premier League era and demonstrated that, rather than damaging its performance, “the influx of foreign players might have actually improved the average performance of the national team”²¹.
In addition, it is worth considering the likely effect that the Rule would have on national sides of countries without strong domestic leagues. Would the premium placed on eligible players by clubs in the Premier League, La Liga, Serie A etc. encourage young foreign players to refuse to play for their own country on the basis that they would be reducing their marketability to the “big leagues”? Is it possible, therefore, that the Rule would actually have a negative effect on competitive balance at national team level?
(b) Improving the competitive balance at club level
It is hard to see how the Rule would improve the competitive balance at club level given that the richest clubs would remain free to sign the best eligible players and to pay their high salaries (and, given the premium placed on the best eligible players, the Rule may well result in a noticeable increase in the salary demands of these players).
The Rule appears an ill-suited tool to this purpose. An improved system of income redistribution represents a better targeted, less restrictive alternative to address any perceived competitive imbalance at club level.
(c) Encouraging the development of young players
The INEA Opinion recognises that clubs are continuing to increase their investment in the training of young players. Notwithstanding this fact, the Opinion argues that the Bosman decision has "caused a reduction of the promotion of young players"²². As evidence for this position, INEA highlight the reduced amount of playing time for young players in the Bundesliga between 1985 and 2004. In reading the statistics put forward by INEA, however, it is interesting to note that the amount of playing time for young players in the Bundesliga appears to have actually increased between 1996 (the year the Bosman ruling was implemented) and 2004²³.
In any event, the Rule again appears ill-suited to this task. Better targeted means of addressing this perceived problem might include imposing a rule requiring clubs to field a certain number of under-21s in secondary domestic competitions or introducing incentives (similar to UEFA's "fairplay" scheme) for clubs who reach certain targets in relation to young player appearances.
Notwithstanding the latest confirmation of the Commission's displeasure, FIFA seem unlikely to be deterred from their goal. We can, therefore, expect further reports to be commissioned, statements to be issued and rounds of lobbying to be conducted in support of the Rule.
The great shame is that the objectives of the Rule are supported by all in the sport. I would suggest that football might be better off if the time, money and effort being spent on FIFA's unwavering (though surely futile) crusade to bend European law to its will were instead focussed on finding workable solutions to the undeniable issues facing the modern game.
For further information
Ian Lynam, Partner
Article obtained from www.charlesrussell.co.uk, the website of Charles Russell LLP. Article reproduced with their kind permission.
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- Tags: Discrimination | Employment Law | European Court of Justice | FIFA | Football | Nationality | UEFA | United Kingdom (UK)
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Ian has wide expertise across corporate, commercial and regulatory matters. He is recognised by the legal directories as a leading “commercial dealmaker” “who has become a clear leader in the UK” and “an excellent lawyer, whose knowledge of the sports industry is unparalleled”. His expertise includes financial regulation of sport (including salary caps and financial fair play), mergers and acquisitions in sport, financing, governance, integrity, rules and regulations, sponsorship agreements, transfers, player contracts and image rights. He has a particular expertise in the use of data in sport, has spoken widely on the subject and sits on the board of STATSports as a non-executive director.