Josep F. Vandellós Alamilla writes about how during every transfer window1
without exception, he bumps into a footballer or into a club confronting the same situation which can be briefly summarized as follows: A club wishes to hire a player who unilaterally terminated his employment contract with the former club prior to its expiration.
After having signed the employment contract and the new club having requested the relevant International Transfer Certificate (“ITC”) through its national association, the latter refuses to deliver it instructed by the former club of the player, impeding the registration with the new club and thus blocking his right to play.2
The immediate reaction in most cases is the new club being understandably reluctant in keeping the player, aware of a potential conflict with the former club and the economic, sporting and disciplinary sanctions that can arise thereof3.
In that particular context, the player has basically two options: (a) taking action against the new club for refusing to register him (provided he kept at least a copy of the contract); or (b); move on and keep looking for another club who is willing to take the risk and register him. Both of the options however, lead to the same negative effect for the player, this is, being prevented from playing sine die until he succeeds in convincing a possible new club to go through a special procedure allowing the provisional registration of the player.
The option to wait for a FIFA decision in the main conflict between the player and his former club may take several years and therefore, cannot be contemplated as a realistic option.
In light of this frequent and increasing problematic in the world of international transfers in professional football, the purpose of this paper will be firstly to analyze whether the prerogative to refuse the issuance of the ITC constitutes an obstacle to the legal freedom of movement for workers within the European Union, and secondly if so, whether it is a justified impediment or not.
Overview of the principle of freedom of movement for workers in the European sports sector
The freedom of movement for workers is one of the fundamental principles in which the European Union is built and is enshrined in Article 45 of the Treaty on the Functioning of the European Union (“TFEU”)4 being further developed through Regulation (EU) no. 492/2011 on freedom of movement for workers within the Union5.
This legal freedom entails the right, subject to some very exceptional and limited restrictions6: (a) to accept offers of employment actually made, (b) to movefreely within the territory of Member States for that purpose and (c) to stay in a Member State forthe purpose of employment.
The safeguard of this principle is essential to guarantee a true internal market and in words of the European Commission7: “Article 45 TFEU implies that any direct discrimination on grounds of nationality is prohibited, and that any indirect discrimination and obstacles impeding the exercise of the right to free movement which are not justified, necessary and proportionate to the legitimate aim pursued must be abolished”.
Throughout the years several studies coordinated by the European Commission8 and decisions of the ECJ have shaped the evolution and development of this principle9 affecting sports, most of them however, involve issues related to equal treatment and discrimination based on nationality which lack of interest for the present article.
In fact, article 45 TFEU prohibits not only all forms of discrimination based on nationality, but also other less perceptible obstacles potentially discouraging cross-border mobility such as the ITC regulation, which is mandatory for all international transfers of players indistinctively to nationality and may temporarily block the career of a footballer.
To this end, it seems worth referring in first instance to the well-known “Bosman Case”10 (C-415/93) which, beyond its structural consequences to the former international transfer system, reaffirmed the above consideration stating that rules likely to restrict the freedom of a professional football player continuing his career in another Member State, even when they apply without regard to nationality, constitute an obstacle to freedom of movement for workers prohibited by EU law, unless justified reasons intervene.
Also involving football matters, the “Olympique Lyonnais v. Olivier Bernard and Newcastle United Case”11 (C-325/08) offers further guidance for assessing whether a certain provision may constitute an obstacle to the freedom of movement of sportsmen. In this case, the ECJ pointed out that a rule may restrict freedom of movement for workers by simply making “the exercise of that right less attractive”12.