Irregularity of Solidarity or Solidarity in the Irregularity: The Case against the Applicability of the FIFA Solidarity Mechanism Only to International Transfers

Article excerpt

Introductory Remarks

The FIFA Commentary of the FIFA Regulations on the Status and Transfer of Players (the Regulations), which is based on the jurisprudence of the competent decision-making bodies of FIFA and the Court of Arbitration for Sport (CAS), interprets the provision of article 1 (3) of the Regulations to the effect that the solidarity mechanism does not apply in the case of a transfer between clubs belonging to one national association. Indeed, the most recent case law of the FIFA Dispute Resolution Chamber (DRC) and the CAS confirms the applicability of the FIFA Solidarity Mechanism only to international transfers. This is so even in the cases where a member association of FIFA has failed to foresee a system to reward the clubs investing in the training and education of young players at national level as required by article 1.2 of the Regulations.

If we see the Football Associations who have turned a blind eye to the one of the most important principles of today's football and somehow missed to implement it in their domestic regulations one might be surprised to find the English and Italian associations on the list. At the same time, countries like Bulgaria, for instance, have duly incorporated the FIFA provisions on solidarity in their respective internal rules.

The reason for the non-compliance of the biggest football countries in Europe is obvious. Only in the football leagues of such countries, there might be domestic transfers for significant amounts of money concerning players entirely trained and educated by foreign clubs. This means that even the 5% for solidarity could amount to a serious sum which will have to leave the country. And while this conduct may be understandable from the point of view of the English and Italian clubs what does it have to do with the idea of solidarity? This is obviously one serious irregularity of the whole solidarity system as developed by FIFA which totally undermines it. And if there is any solidarity left, this is only the solidarity among the national associations of the biggest European football leagues to maintain this irregularity as long as possible.

FIFA and the CAS have so far refused to remedy this injustice by insisting that the FIFA solidarity mechanism applies only regarding international transfers, which, according to the respective decisions, follows from the alleged clear wording of the FIFA Regulations. We agree that the FIFA Regulations are clear; however, this article argues that they are clear in saying just the opposite: the FIFA Solidarity Mechanism applies to all transfers either international or domestic.

Before moving to the essence of our analysis, we would like to mention some important preliminary points.

Some Preliminary Points

The Commentary and Notes are there for guidance purposes only and cannot affect the legal meaning and interpretation of the Regulations themselves. And, as the FIFA Commentary on the Regulations itself makes clear, the explanations in this Commentary are subject to changes or amendments of the relevant jurisprudence by the relevant bodies. Even the presence of CAS decisions should not make the matter completely settled because the principle of 'stare decisis' is not followed by the CAS; and even a similar case may be tried again with a different outcome, especially in view of new arguments such as the ones advanced in this article.

The issue whether the solidarity mechanism shall apply to all transfers of players or only in cases of so-called international transfers may be answered correctly and thoroughly only after first examining the historical background to and the inherent reasoning and justification for the introduction of this mechanism. As Gerard McMeel, Professor of Law at Bristol University, United Kingdom, in his recent major work on The Construction of Contracts (Oxford University Press, UK, 2007) explains in respect of the interpretation of contracts, and, by analogy rules and regulations, which he refers to as the 'Objective Principle in Interpretation', one has to take into account the objective framework of facts within which the measures came into existence. …