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Rules on Player Release

The rules

The rules governing release of players by clubs to allow their selection for international representative teams are vivid examples of the truth that sport is special. Their most high-profile version is found in football.

The currently applicable rules are contained in the FIFA Regulations on the Status and Transfer of Players,69 Annex I of which is entitled ‘Release of Players to Association Teams’.

Its first paragraph is uncompromising:

Clubs are obliged to release their registered players to the representative teams of the country for which the player is eligible to play on the basis of his nationality if they are called up by the association concerned to play in an international match between two representative teams belonging to different associations. Any agreement between a player and a club to the contrary is prohibited.

  • 68 Wouters (n 20).
  • 69 The text of the FIFA Regulations on the Status and Transfer of Players is available at accessed 29 November 2016.

The Annex applies the same regime to the women’s game.

The Annex provides in detail for the length of the period of release: it is longer for competitive than for friendly matches. But the basic point, made explicit in the second paragraph, is that release of players under the conditions specified is mandatory. This applies not only to clubs, but also to players, who are ‘obliged to respond affirmatively when called up by the association’, subject only to a carefully written exception in the case of an existing injury or illness. Sanctions may be imposed on club and/or player in the event of non-compliance. It is, moreover, stipulated in section 2 of the Annex that clubs releasing a player are not entitled to financial compensation; and that the club with which the player is registered shall be responsible for insurance cover against illness and accident during the entire period of release, including in respect of injuries sustained by the player during the match(es) played during the period of release.

Disputes are typically routed through the Dispute Resolution Chamber of Federation Internationale de Football Association (FIFA) and then, if necessary, through the Court of Arbitration for Sport (CAS), as explained in Chapter 2. So, for example, a disagreement about whether clubs were required to release players for the 2008 Olympic Games’ football tournament was resolved, in principle, by the CAS in favour of the clubs—although, not least because of the eagerness of the players to travel to Beijing in search of a coveted Olympic medal, in practice release did occur.[1]

This is a governance choice that, on first inspection, seems to be a necessary element in the organization of football. There are no permanent international representative teams. Instead international fixtures are placed in agreed slots through the calendar: friendly matches and qualifying matches lead to summer tournaments such as the World Cup (which takes place once every four years) which are the most high-profile events. It is club football which dominates the calendar. And players are contracted to clubs, which pay their wages as employees. If selected, players are released for a short period of time to play for international representative teams. FIFA’s rules, as just summarized, guarantee this. No ‘normal’ industry would require that employees be (in effect) loaned out to support another related activity, but no ‘normal’ industry is based on a mix of club and international representative football in the way that football and some other team sports are.

A second glance is needed to appreciate the scale of the oddity. Club football and international football are to an extent engaged in competition in the same markets. Resources devoted by sponsors, advertisers, and broadcasters to football are finite, and their allocation to support, say, FIFA’s World Cup will reduce the sums available to support club competitions at European or at national level—and vice versa. The player release rules make international representative football more commercially attractive than it would be were clubs entitled to choose whether to allow their players to perform also at international level. This creates a problem associated with the distortion of the competitive structure of the market. And FIFA is no neutral regulator. FIFA has a direct commercial interest in the matter. The World Cup is an immensely lucrative resource for FIFA. It ensures its commercial attraction by requiring that clubs (in effect) loan it their best players for the duration of the tournament. There is something perfectly breathtaking about the requirement that an employer release its often very highly paid and carefully trained employee to work briefly for another entity that has made no investment in that labour resource and which does not even pay for that privilege and yet which benefits directly as a result. What is in fact at stake is one commercial undertaking, FIFA (plus the national associations), using its regulatory power within sports governance to force other competing commercial undertakings, clubs, to strengthen the vitality of its, FIFA’s, business model at the expense of that of the clubs. This is the problem, visible in MOTOE, of the sports federation labouring under a conflict of interest because its choices about governance and regulation are entangled with and directly serve its commercial objectives.

The question is whether sport is so special that it can withstand the allegation that player release rules, which are imposed top-down by federations and national associations on clubs and players through the governance structure of the sport, amount to an abuse of a dominant position of the type forbidden by Article 102 TFEU.

  • [1] CAS 2008/A/1622-1623-1624 Schalke 04, Werder Bremen, Barcelona v FIFA.
 
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