EN Official Journal of the European Union CE 88/571

(2004/C 88 E/0582)

WRITTEN QUESTION P-1123/04

by Roy Perry (PPE-DE) to the Commission

(5 April 2004)

Subject: Recourse to civil courts

The Fédération Internationale de Football Association's (FIFA) current Statutes (Regulations Governing the Application of the Statutes; Standing Orders of the Congress) prevent professional football clubs throughout the EU from having recourse to normal legal channels. Article 61 of FIFA's Statutes states that:

Recourse to ordinary courts of law is prohibited unless specifically provided for in the FIFA regulations.

To ensure the foregoing, the Associations shall insert a clause in their statutes stipulating that their clubs and members are prohibited from taking a dispute to ordinary courts of law and are required to submit any disagreement to the jurisdiction of the Association, the appropriate Confederation or FIFA.

According to the Statutes, should the clubs have a dispute with FIFA or other stakeholders involved in football, they must address their complaint to a special Court of Arbitration for Sports in Switzerland. Article 59 of FIFA's Statutes states:

FIFA shall create an option for recourse to the Court of Arbitration for Sport, an independent arbitration tribunal with headquarters in Lausanne (Switzerland), to resolve any disputes between FIFA, the Confederations, Members, Leagues, Cubs, Players, Officials and licensed match agents and players' agents.

Could the Commission clarify whether FIFA's Articles 59 and 61 are compatible with EU internal market principles and with EU law (for example, Article 81 of the Treaty establishing the European Community)?

Answer given by Mr Prodi on behalf of the Commission

(30 April 2004)

The Commission would point out first of all that the considerations below concerning Articles 59 and 61 of the Fédération Internationale de Football Association's (FIFA) Statutes apply also to the Statutes of the Union des Associations européennes de Football (UEFA), which contain similar provisions and which, in Article 5, limit membership to ‘national football associations situated in the continent of Europe’.

In the Commission's opinion, a rule such as that in Articles 59 and 61 of the FIFA Statutes which prohibits recourse to national courts and imposes compulsory arbitration prima facie infringes the principle of freedom of access to employment. This principle constitutes a fundamental right which, as the Court of Justice has acknowledged (1), the EC Treaty confers individually on each worker in the Community. The existence of a right of appeal to the courts from a decision of a national authority denying an individual free access to employment is essential if this fundamental right is to be effectively protected. This requirement constitutes a general principle of Community law which stems from the Member States' common constitutional traditions and is enshrined in Articles 6 and 13 of the European Convention on Human Rights (see also Article 47 of the Charter of Fundamental Rights).

As regards the possible infringement of Articles 81 and 82, a rule such as the one in question is prima facie contrary to the EC Treaty inasmuch as the denial of access to the courts may facilitate anticompetitive agreements or conduct.

When it examines cases brought before it, the Commission accordingly takes care to ensure that these principles of freedom of access to employment and freedom of competition are complied with. For example, as a result of its action, Article 42 of the FIFA Regulations for the Status and Transfer of Players henceforth makes it possible to derogate from Articles 59 and 61 of the FIFA Statutes by permitting recourse to the courts.

The Commission would also draw the Honourable Member's attention to the fact that decisions of the Switzerland-based Court of Arbitration for Sport (CAS) may be challenged before the ordinary courts under certain conditions and on certain (limited) grounds.

(1) Case C-222/86 Heylens [1987] ECR 4097.