Academic journal article The International Sports Law Journal

The FIFA "6+5" Quota System: Legal Admissibility under the Terms of the Treaty of Lisbon

Academic journal article The International Sports Law Journal

The FIFA "6+5" Quota System: Legal Admissibility under the Terms of the Treaty of Lisbon

Article excerpt

I. Introduction

European football undoubtedly is a very popular sport. Therefore, it is not surprising that the market values of the largest football clubs in Europe varied between EUR 55 mio and EUR 116 mio in the Season 2006/2007 with the most expensive teams (1) reaching levels far beyond EUR 300 mio each. (2) In the past 15 years there has been a significant increase of the proportion of foreign professional player in European football leagues. (3)

For this reason there have been and there are strong efforts to introduce player quotas. These quotas were and are meant to support honourable aims, but indeed could not persist under European Community Law in the past. According to the ruling of the European Court of Justice (ECJ) in the cases "Dona" (4), "Bosman" (5) and "Simutenkov" (6) player quotas even reach beyond sports law.

The so-called "6+5" Rule and the "home-grown players" Rule (7) have to be designated as recent examples to the aforementioned. As a matter of fact in the year of the so called "Bosman" ruling professional clubs in the Community already employed a considerable number of players from other Member States and non-member countries (8) and the number even increased until nowadays.

The International Federation of Association Football (FIFA) fears the competitive balance of sports at the level of national and international competition could be weakened without a quota system and the sporting and financial concentration could even increase affecting the promotion of junior players and the quality and substance of the national teams. (9)

FIFA's latest attempt to address these issues is the "6+5" Rule mentioned above. (10) According to this rule, a football club is obliged to begin a game with at least six players entitled to play for the national team of the country where the club is located. (11) The teams are entitled to substitute three additional players against foreign ones during the match, so that the balance might be "3+8" in the end. Furthermore there are no restrictions for a club in concluding contracts with foreign players.

FIFA originally intended to introduce the "6+5" Rule until the 2012/2013 season beginning with a "4+7" Rule in the 2010/2011 season, in order to grant a reasonable amount of time to the clubs to adapt their squads. (12)

In the meantime the European Parliament (13) voted for a rejection of the "6+5" Rule and the European Commission (14) recognized a breach of Art. 45 TFEU (15).

At present the aforementioned rule has not been effected and according to a study from September 2010 the 60th FIFA Congress meeting in Johannesburg in June 2010 decided to withdraw the "6+5" Rule. (16)

Nevertheless FIFA's President Mr. Blatter is continuing to defend "his Rule" (17) by seeking further political support for this project.

II. Legal admissibility of the Rule

In the following the legal admissibility of the "6+5" Rule will be considered in detail. Therefore an analysis of its compatibility with Art. 45 TFEU and with Art. 101, 102 TFEU is required.

1. Breach of freedom of movement for Personas

Economic integration of the Member States is a primary aim of the Union (Art. 3 TEU (18)) and therefore the Treaty provides the abolishment of all obstacles to the basic freedoms within the Community (Art. 3 para.1 b), Art. 4 para.2 b), Art. 26 TFEU).

In addition the fundamental freedoms are no longer considered as the sole prohibitions of discrimination but were developed by the ECJ as liberty rights. (19) Thus the scope of Art. 18 TFEU is subsidiary. This understanding of fundamental freedoms as liberty rights is necessary to achieve a more extensive access to national markets and required by the "effet utile". (20) The ECJ stated to abolish all disadvantages for cross-border economic activity. (21)

a) Scope of protection

Furthermore it has to be considered, if regulations of Sports Associations are included within the scope of Art. …

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