For my last post, I chose a truly intriguing aspect of European Sports Law - the self-awarded legal "immunity" enjoyed by FIFA and its National Football Associations.
Under Article 62 (2) of the FIFA Regulations [r]ecourse to ordinary courts of law is prohibited unless specifically provided for in the FIFA regulations. I'm not going to go deep into the legal questions a provision of this kind entails, namely in the area of regulation and the relations between regulatory and judicial entities. Suffice to say that in Europe (as in the US or any other mildly civilized world...) the right to obtain redress in a court of law is a fundamental right of any citizen. The recent Belet report, finally approved by the European Parliament, clearly states that the submittal of claims in civil courts cannot be the subject of disciplinary action by FIFA, even if there is the need to preserve the integrity of FIFA's competitions. The report further challenges FIFA to amend its regulations so that balance can be struck between the individual right to address a civil court and the organization of competitions.
This obscure provision went relatively unnoticed for many decades, until sport became big business. The money involved in sport spurred the movement towards court rooms of which the Bosman decision is perhaps the most visible result. The aftermath of Bosman (it bares great resemblances to baseball’s first cases as far as freedom of movement arguments are concerned) is ironic. It is a harsh decision that basically shattered football's transference system as it was know at the time, with well-documented effects to competitive balance in European Football. After Bosman, European courts have been cautious in their approach to sporting matters, afraid to once again disrupt football well-established model. Notwithstanding the increasingly lenient stance displayed by the judiciary, FIFA reacted violently to Bosman, enforcing Article 62 (2) in an attempt to preserve its regulatory power over football. Several cases have highlighted FIFA's recent stance: in Portugal, Gil Vicente, a small Premier League club was relegated because it submitted an action in a Portuguese Administrative Court, seeking to authorize the registration of one of its players, in what latter became known as the "Mateus Case". The case may yet end up in European Courts and it would come as a surprise if Article 62 were to be deemed compliant with European Law. There is no organizational goal or competitive integrity end that can justify this type of “immunity”. In fact, restrictions and its advantageous effects should be assessed in court.
After going through some of the American case-law involving professional leagues, I now wonder: what if an MLS franchise were to challenge any of the MLS rules in a court of Law? How would Americans react to FIFA's attempt to block the claim by imposing Article 62 on club and league?
P.S. - This was my last post. I deliberately chose to focus on football because it is the one sport that will allow us to adequately compare American and European case-law in the future. American sports have always been business and have merited legal treatment in accordance with the status. Still American courts have managed to take into account the specific features of sporting organizations and competitions. I believe the American Model is of great value to its European counter-part in this time of major changes.
I would like to thank the Sports Law Blog team for this invitation and especially Michael McCann. It has been a true honor. This blog is excellent. I would also like to thank the commentators for their great comments.
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