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The litigation

The matter has not been tested before the Court. But it nearly was, and the litigation that was discontinued before the Court had a chance to rule is in many respects as illuminating as some of the Court’s actual rulings in exploring the EU law’s intersection with and impact on governance in sport.

The story begins in November 2004. Its location is Belgium. Charleroi’s promising young footballer, Abdelmajid Oulmers, had been released to play at international level for his country, Morocco. He was seriously injured and consequently he was unavailable for selection by Charleroi for several months. Such events are, to the dismay of clubs, far from uncommon in football.[1] Charleroi’s results suffered a downturn. However, under FIFA’s Regulations, set out earlier, the club continued to have to pay his wages while being unable to claim any compensation for his unavailability for selection. Charleroi initiated litigation before the Belgian courts. It claimed damages from FIFA, alleging that it was the victim of abusive practices in violation of what was then Article 82 of the Treaty Establishing the European Community (EC), now Article 102 TFEU. In May 2006 the Tribunal de Commerce in Charleroi rejected a number of arguments advanced by football’s governing bodies which were designed to maximize sporting autonomy under the

lex sportiva. Some involved technical points of procedure, others were of a more fundamental nature. Some were rooted in Belgian law, others stemmed from EU law. The Tribunal concluded that, as a matter of Belgian public policy, it would not defer to the jurisdictional exclusivity claimed by FIFA for the Court of Arbitration in Sport: this is fully in line with the account provided in Chapter 2 of this book, which emphasizes EU law’s predilection to crack open claims to the contractually enforced autonomy of the lex sportiva. Moreover, the Tribunal was not deterred by pleas to treat the rules as purely sporting in nature. It took the view that the complexity of the case law, combined with the transnational importance of the issue under examination, made it an appropriate case for referral to the Court of Justice in search of an authoritative uniform interpretation of EU law. And so the reference was made in May 2006 as SA Sporting du Pays de Charleroi, G-14 Groupment des clubs de football europeens v Federation internationale de football association (FIFA).[2] [3]

The question referred asked:

Do the obligations on clubs and football players having employment contracts with those clubs imposed by the provisions of FIFA’s statutes and regulations providing for the obligatory release of players to national federations without compensation and the unilateral and binding determination of the coordinated international match calendar constitute unlawful restrictions of competition or abuses of a dominant position or obstacles to the exercise of the fundamental freedoms conferred by the EC Treaty and are they therefore contrary to Articles 81 and 82 of the Treaty [now Articles 101 and 102 TFEU] or to any other provision of Community law, particularly Articles 39 and 49 of the Treaty [now Articles 45 and 56 TFEU] ?

But the Court of Justice did not answer this question.

The reference was the subject of an appeal before the Belgian courts. That appeal was set for hearing in the summer of 2008. The Court of Justice decided to wait, pending resolution of the Belgian appeal. But the litigation was settled out of court in early 2008. And in 2009 the case was recorded as having been removed from the Court’s register.73

Two distinct lines of inquiry deserve pursuit. First, why and with what consequence was the litigation discontinued? Second, how should the question asked, but never answered, about the compatibility of the mandatory player release rules with EU law be properly answered? Both lines of inquiry reveal much about EU law’s influence on governance in sport.

  • [1] eg ‘Wenger Blames French FA for Henry’s Injury’ The Independent (London, 14 March 2007) 56;‘Fifa Offers Newcastle ?1m for Owen Injury’ The Guardian (London, 1 March 2007) Sports section, 5;‘Bayern Blame Irresponsible Dutch for Robben Injury’ The Guardian (London, 4 August 2010) Sportssection, 4; ‘Fractures impayees: suite a la blessure d’Eric Abidal, l’OL menace de poursuivre la FFF ...’Les Cahiers du Football 18 November 2005 accessed 29 November 2016.
  • [2] Case C-243/06, referred to the Court of Justice by Tribunal de Commerce de Charleroi in May2006. For further background, see Weatherill (n 51) 3.
  • [3] [2009] OJ C69/30.
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