Early November saw a landmark six-year cooperation agreement reached between the Fédération Internationale des Associations de Footballeurs Professionnels (FIFPro) and the Fédération Internationale de Football Association (Fida), the world players’ union. Such agreement concerned the governance of professional football worldwide, following FIFPro’s initial legal complaint against Fifa to the European Commission in September 2015.
FIFPro’s legal complaint centred around the fact that the current transfer regulations were illegal and anti-competitive in nature.
The transfer regulations have always been subjected to numerous legal challenges, with the most famous case being the Bosman judgment in 1995, which found that the rules in force at the time were illegal and formed a restraint of trade. The European Commission instructed Fifa to cooperate with key stakeholders, among them FIFPro, towards developing a set of rules which would comply with European law provisions and at the same time allow some stability.
This eventually led to the current Regulations on the Status and Transfer of Players (RSTP) rules being adopted in 2001 and which have been updated periodically. Such rules were meant to reflect five criteria set out by the European Commission: they needed to safeguard the players’ contracts, maintain the stability of competitions, ensure the stability of clubs, promote competitive balance and finally promote solidarity.
According to FIFPro, such rules were deemed to have failed in their scope, to the unfortunate detriment of footballers. The cause of such failure was the fact that many of the aims that were meant to have been achieved through such rules were never achieved, leading to calls for them to be updated to reflect more modern times and concerns.
Among such matters of contention, FIFPro were alleging that the current system created a competitive imbalance whereby only the bigger and wealthier clubs could afford the astronomical transfer fees of top players, leading to commercial exploitation and impeding the free movement of players.
Another grievance related to the fact that players not paid by their clubs had to wait an agonising 90 days before they could claim just cause. FIFPro’s arguments were further strengthened through the 2016 FIFPro Global Employment Report, which cast a damming report on the football industry following the participation of 14,000 current players in 54 countries and 87 leagues across the world.
The new rules are envisaged to streamline dispute resolution between players and clubs, particularly regarding decisions in cases of overdue payments
On the domestic front, a staggering 40 per cent of players interviewed in Malta were reported to have been transferred against their interest, with eight out of 10 players not being paid on time and 16 per cent of those interviewed locally having been approached for match-fixing attempts at some point during their careers.
Clearly the RSTP rules were not living up to expectations in these situations. What makes the situation worse in Malta, and other countries, is the fact that the Malta Football Association (MFA) prevents players from taking civil action to rectify such an injustice, without the express consent of the MFA council being obtained first.
Contravening such statute provision would result in such person being declared a persona non-grata. The Malta Football Players Association (MFPA) has been calling on the MFA to abolish the Maltese transfer system, which currently still provides for clubs having to pay a transfer fee to sign an out-of-contract player.
Although the parameters have been reduced through statute changes, the rules are still in force, leading to some players simply having no choice but to hang up their boots at an earlier stage in their career.
One of the core disputed articles of the RTSP concerns Article 17 which in theory allows a player who is under contract to breach such contract and sign for another club, provided that certain conditions are adhered to, among them having completed three years under the disputed contract.
The main concern with such article is the determination of compensation to be paid, which under the current rules is calculated at the discretion of FIFA’s Dispute Resolution Chamber.
Although the first landmark case of Webster who terminated his contract with Scottish side Hearts to join Wigan Athletic was deemed to be satisfactory for all parties, another case, of Brazilian midfielder Matuzalem, was a clear example of the complications caused by such rules.
In such case, the Court of Arbitration for Sport (CAS) set the compensation to be paid at $15 million (eight times Matuzalem’s salary), after which nobody has since dreamt of invoking such article again.
The new cooperation agreement has been welcomed by both sides, and comes after an enduring 18 months of abundant negotiations between Fifa and key stakeholders under Fifa’s newly formed Football Stakeholders Committee. The new rules are envisaged to streamline dispute resolution between players and clubs, particularly regarding decisions in cases of overdue payments and a new provision to avoid abusive conduct of parties, especially in cases of players being forced to train alone when in dispute with their contractual clubs.
The transfer system rules will be further improved through the establishment of a task force whose role will be to study and conduct a broader review of the transfer system. The desire of Fifa and FIFAPro is for such rules to respect internationally recognised human rights, promoting equality across the board and working towards the growth of professional women’s football, and women in football.
Of course, one must wait and see whether such cooperation agreement will in actual fact come to bear fruit or whether it will be put at the back of the shelf and long forgotten. Some see such agreement being reached in order not to have a repeat of the embarrassment caused to Fifa that emerged following the Bosman judgment.
On the face of it, such agreement appears to be promising in nature, giving football a much-needed breath of fresh air. Football governing bodies and associations must keep on ensuring that they are not caught offside and are instead constantly ensuring that their rules and regulations are keeping up with modern times and developments.
Robert Dingli is studying for Masters in Sports Law at Nottingham Trent University and is vice-president Swieqi United FC.