Who governs global football and how can they be held to account? Alan Tomlinson argues that FIFA will continue to misgovern the game unless national legal bodies and the EU challenge the elusive phenomenon of “sport law”.
In men’s professional football, a complex superstructure of organisations oversees the rules of the game, headed by the once respected but now infamous world governing body FIFA.
From its formation in Paris in 1904, well before FIFA transformed itself into a monetising cross-planetary operation, a small group of football officials oversaw its gradual growth. From 1932, two years on from inaugurating the first World Cup in Uruguay in 1930, FIFA was based in Zurich, Switzerland.
The small body continued to develop under the protection of a Swiss Civil Code confirming its status as a non-commercial entity. By the early 1960s, FIFA had approved six continental confederations. These confederations are in rather vague ways “affiliated” and answerable to the world governing body, even though they essentially run the professional game and represent the national associations in their own regions. In Europe, for instance, UEFA, founded in 1954, has 55 national football associations, but FIFA rules the global football roost.
When issues emerge in the sphere of the law, FIFA refers to its Statutes, its Code of Ethics and its Disciplinary Code. However, frequently its internal processes are not up to scratch. This is despite its claims to have established (from 2012) effective internal procedures through its independent Ethics Committee, operating both an Investigative Chamber and an Adjudicatory Chamber. Such provision was made in many respects to ensure that the world governing body need not refer to the legal systems of states or to the legal processes of the European Union.
The Bosman ruling
In the 1990s, FIFA and UEFA encountered the powers of the EU in an extended case centring on Belgian footballer Jean-Marc Bosman. Bosman in essence represented every single footballer across Europe when in 1990/91 he challenged two of his professional clubs, plus ASBL (the national football association of Belgium) and UEFA, “on the interpretation of Articles 48, 85 and 86 of the EEC Treaty”.
The two clubs were Belgian first division Royal Club Liège and French second division club Dunkerque. Bosman claimed that Liège’s refusal to release him from his contract constituted a violation of the principle of free movement of workers and that Dunkerque’s failure to meet Liège’s transfer demands left him unable to move clubs.
His case against UEFA was essentially that it had drafted the rules that the clubs had recently made and “as a result of which he had suffered damage”. In December 1995, the Court of Justice of the European Union (CJEU) ruled on the case and in the process changed the professional game. In a 43-page long judgment, the Court eviscerated the established procedures whereby clubs and football authorities at national and supra-national level could control the careers and fortunes of professional footballers.
The Court concluded that Article 48 supported the Bosman case on two key points. First, it ruled that a professional footballer who is “a national of one member state” does indeed have the right, at the end of a contract, to “be employed by a club of another member state”. Second, it ruled that football associations and UEFA did not have the right to implement quota systems restricting the number of players from other EU countries that clubs may field in a game.
The ruling effectively meant that players could move to other clubs at the end of their contract without a transfer fee being paid. Six years on from the judgment, FIFA introduced revised regulations in September 2001. The Bosman ruling forced this change – FIFA had no choice but to amend its own regulations to step in line with EU law.
European interventions – voices without actions
European bodies, from the European Union to the Council of Europe, play important roles in the sporting sphere. The Council of Europe (CoE) was a co-founding partner of the International Partnership Against Corruption in Sport (IPACS), established in 2017.
In 2010/11 the CoE recognised in its Enlarged Partial Agreement on Sport (EPAS) “the unique place that sport has in modern society and its potential to support democracy, participation, involvement, motivation, inclusiveness and social cohesion”. It has regularly updated the Revised European Sports Charter, strengthening and reaffirming its commitment to values-based sport and “sport for all”.
IPACS lists 72 national governments as members, of which just 14 are partners/observers. Its principles are worthy, requiring governments to reduce the risk of corruption in sport, ensure integrity in selecting major sport events, monitor compliance with “good governance principles” and to enhance “effective cooperation between law enforcement, criminal justice authorities and sports organisations”. But the small number of governments seeking partner status lacks credibility alongside the ambitious and somewhat idealised goals of the IPACS.
Sport law
A major complication is that the powerful national and international sporting bodies continue to abide by the principles of lex sportiva or “sport law”. This implies that sport is governed by a distinct legal order that exists outside of other legal entities and systems.
As Richard Parrish put it back in 2012, “EU law … only patrols the outer limits of the lex sportiva, ensuring that an equilibrium between the two judicial domains is maintained”. It is surely the case though that such a precarious form of equilibrium guarantees uncertainty, permitting the defendants of internal sport law to conduct their pseudo-legal practices with relative ease.
FIFA has pledged to reform time and time again, but it continues to act with little concern for established principles of accountability, transparency, democracy and good governance. As I argue in a recent study (with E.A. “Teddy” Brett), FIFA will continue to misgovern world football for the foreseeable future unless stakeholders speak out, new voices emerge and – perhaps the biggest challenge – national legal bodies and supra-national entities such as the EU take responsibility for the elusive and strangely persisting phenomenon of “sport law”.
For more information, see the author’s recent study in the Oxford Journal of Legal Studies (co-authored with E.A. Brett).
Note: This article gives the views of the author, not the position of LSE European Politics or the London School of Economics.
Image credit: froarn provided by Shutterstock.
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