We have consistently taken the view that Uefa’s financial fair play (FFP) rules are open to challenge in court. It is therefore interesting to see Belgian lawyer Jean-Louis Dupont, who was part of the team who won the Bosman case in 1995, arguing a similar case in the Wall Street Journal.
We have consistently taken the view that Uefa’s financial fair play (FFP) rules are open to challenge in court. It is therefore interesting to see Belgian lawyer Jean-Louis Dupont, who was part of the team who won the Bosman case in 1995, arguing a similar case in the Wall Street Journal.
Dupont argues that clubs would have a strong case if they went to the European Court of Justice (ECJ) because sport is not a special case in European law. There might be an interesting point to be considered about the relevance and status of the ‘soft competence’ on sport given to the EU in Article 165 of the Lisbon Treaty. Only sports lawyers can authoritatively pronounce on that point and they would probably disagree among themselves, but the consensus view seems to be that it makes little difference.
Dupont makes three key points. First, FFP is a breach of EU competition law which has always been our core argument. Second, it may infringe other key EU provisions such as the free movement of workers and services (I think this is a less sure argument, even if it was key in the Bosman case). The third point is whether the restraints in FFP are legitimate and necessary in the sense that they breach EU freedoms but do so in the pursuit of legitimate objectives.
It may also be that clubs would have resort to the Court of Arbitration for Sport in Lausanne because it would offer a cheaper and quicker route than going to the ECJ. Clubs are also less likely to incur the cost of a legal challenge if they were just banned from the Europa League. In technical terms, a lot in any case could turn on variations in accounting standards between different countries.
Mel Goldberg, the president of the British Association for Sport and Law, has researched the subject with barrister Simon Pentol. He accepts that the FFP are open to challenge in the ECJ but told the Sunday Times that the rules are ‘fairly sensible in so far as clubs should not spend more than they earn. It is all about not trading at a loss. If you balance your books, you can spend what you like.’
But then companies in other sectors can legitimately trade at a loss provided they do not do so when insolvent. Against that one could argue that football has special characteristics and should not be treated like other sectors of the economy (which takes us back to Article 165).
My concern has always been that the rules are not as fair as they look because they provide a means for already established and wealthy clubs to pull up the ladder behind them. All restraints on competition can have the effect of solidifying the status quo (think of the way in which established airlines limited competition to ‘charter’ flights for a long time).