Article 17 of the Fifa Regulations on the Status and Transfer of Players
| Date | 01 April 2015 |
| DOI | 10.1177/1023263X1502200206 |
| Published date | 01 April 2015 |
| Subject Matter | Article |
256 22 MJ 2 (2015)
ARTICLE 17 OF THE FIFA REGULATIONS
ONTHE STATUS AND TRANSFER OF PLAYERS
Compatibility with EU Law
R P*
ABSTRACT
Article 17 of the FIFA Regulations on the Status and Transfer of Players governs the
con se que nc es o f a u nil ate ral te rmi nat ion of a pro fes si ona l fo otb all er ’s em pl oym ent con tra ct
without just cause. e interpretation of this measure by the Cour t of Arbitration for Sport,
and the manner through which the FIFA Disciplinary Code enforces such awards , raises
questions as to the compatibility of the regime w ith EU competition and free movement
laws. To avoid rendering unenforceable awards in the territor y of the EU, CAS panels
should apply EU law more systematically and consistently.
Keywords: Art icle 17 FIFA regulations; Court of Arbitration for Sport; EU law;
international football tr ansfer system
§1. INTRODUCTION
e Fédération Internationale de Football Association (FIFA) is the world governing
body of football. e FIFA Regulations on the Statu s and Transfer of Players (RSTP)
regulate the movement of professional footbal lers between FIFA’s member associations.
Articles13 to 18 of those Regu lations are aimed at securing contract st ability between a
player and his club. e Swiss-based Court of Arbitration for Sport (CAS) is competent
to hear disputes under these Regulations. In determining t he nancia l sum a player is
liable for when unilateral ly terminating a contract under Ar ticle17 RSTP, the CAS is
guided by the so-ca lled ‘positive interest’ principle which allows the injured pa rty to
claim the fu ll economic losses for the breach. Should a player not pay the determined
* Professor of Sport s Law, Edge Hill University.
Article 17 of the FI FA Regulations onthe Statu s and Transfer of Players
22 MJ 2 (2015) 257
sum, the FIFA Disciplinar y Code can be engaged and sanctions can be applied. In
addition to FIFA enforcement, CAS awards are enforceable in signator y states to the
New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
e New York Convention speci es that one of the grounds for attacki ng an arbitral
award is if it is contrary to public policy in the signatory state. e Court of Justice of
the European Union (CJEU) has establ ished a European-wide concept of public policy
applicable within t he territory of the EU. i s article ar gues that whi lst the provis ions of
Article17 RSTP are not in themselves i ncompatible with EU law, the reliance by the CAS
on the positive interest principle risk s the enforcement of an Article17 RSTP arbitral
award being attacked on t he grounds of incompatibility with EU publ ic policy, a concept
de ned with reference to EU compet ition law and free movement law.
§2. BOSMAN AND THE REFORM OF THE INTER NATIONAL
TRANSFER SYSTEM
In Bosman, the CJEU exa mined the pattern of regulations governing t he international
transfer of professional footbal l players.1 e Court determined that the transfer rules
constituted an obstacle to t he freedom of movement, prohibited by Article 45 TFEU
(ex Article 39 EC). Up until then, the tra nsfer rules prescribed that a professional
footballer who is a national of one Member State could not, on ex piry of his contract
with a club, be employed by a club of another Member State unless t he latter club has
paid to the former club a tr ansfer, training or development fee. e Court a rrived at this
con clu sion de spit e ac kn owle dg ing the leg it ima cy o f at tem pts by s por ts b od ies to pr omo te
competitive balance a nd the recruitment and traini ng of young players.2 However, the
Court systematica lly detached the transfer system from the pursuit of these legitimate
objectives.3
e referring Belgian C ourt in Bosman4 requested that the CJEU provide a nswers
regarding the compatibil ity of the international tra nsfer system with both free movement
and competition laws. e CJEU stated that since the tr ansfer system was contrary to
free movement rights, it was ‘not necessary’ to rule on the interpretation of Articles101
and 102 TFEU.5 Nevertheless, despite the nar row focus of the Court’s enquiry into the
transfer system, the judg ment ‘did not cover all possible factual scenarios with regard
to transfers’, many of which concerned the applicat ion of EU competition law.6 FIFA
1 Case C-415/93 Union Royale Belge Soci étés de Football Association and o thers v. Bosman and others,
ECLI:EU:C:1995:463.
2 Ibid., para. 106 .
3 Ibid., para. 107–110.
4 Ibid.
5 Ibid., para. 138 .
6 S. Van den Bogaert, Pra ctical Regulation of the Mob ility of Sportsmen in the EU Post B osman (Kluwer
Law Internationa l, 2005), p.218.
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