L'agente FIFA Daniel Striani, rappresentato dall'avvocato Jean-Luis Dupont (lo stesso che vinse la cosiddetta "Causa Bosman" che consente ai calciatori professionisti aventi cittadinanza UE di trasferirsi gratuitamente a un altro club alla scadenza del contratto con l'attuale squadra) ha presentato un ricorso ufficiale alla Commissione UE, sostenendo che alcune parti del Regolamento UEFA sul Financial Fair Play non sono coerenti con la normativa europea.
La principale osservazione riguarda l'art. 57, che introduce l'obbligo del pareggio di bilancio (Break-Even Rule) per le squadre e che limiterebbe il principio di concorrenza producendo i seguenti effetti:.
- Restrizione degli investimenti;
- Fossilizzazione della struttura del mercato esistente (vale a dire che i principali club attuali possono mantenere la loro leadership, e anche aumentarla);
- Riduzione del numero dei trasferimenti, delle somme degli stessi e del numero di giocatori contrattualizzati con ogni club;
- Effetto deflattivo sul livello degli stipendi dei calciatori, e di conseguenza, un effetto deflattivo sui ricavi degli agenti di giocatori (a seconda del livello di trasferimento di importi e/o dei giocatori stipendi)
Questo il testo completo, in inglese, del comunicato stampa rilasciato oggi, rilanciato dal sito Soccernomics:
Today, 6 May 2013, Mr Daniel Striani, player agent (registered with the Belgian Football Association), represented by lawyer Jean-Louis Dupont, lodged a complaint with the European Commission against UEFA in order to challenge infringements to fundamental principles of EU law caused by some provisions of the UEFA “Financial Fair Play” regulation (FFP).
Specifically, this complaint challenges the restrictions of competition caused by the “Break-even rule” (article 57 of the UEFA FFP regulation).
The rule imposes on clubs that participate in the UEFA Champions League or in the Europa League the obligation “not to overspend” (the expenses of a club cannot exceed income). In effect, a club owner is prohibited from “overspending” even if such overspending aims at growing the club.
The “Break-even” rule (which, according to article 101 of the Treaty on the functioning of the EU, is an “agreement between undertakings”) generates the following restrictions of competition:
– Restriction of investments;
– Fossilization of the existing market structure (i.e. the current top clubs are likely to maintain their leadership, and even to increase it);
– Reduction of the number of transfers, of the transfer amounts and of the number of players under contracts per club;
– Deflatory effect on the level of players’ salaries; and
– Consequently, a deflatory effect on the revenues of players’ agents (depending on the level of transfer amounts and/or of players salaries).
At the same time, because of the aforementioned restraints, the “Break-even” rule also infringes other EU fundamental freedoms: free movement of capital (as far as club owners are concerned), free movement of workers (players) and free movement of services (player agents). Consequently, such restriction of competition and violation of EU fundamental freedoms cannot be justified by the objectives put forward by UEFA (long term financial stability of club football; and integrity of the UEFA interclub competitions).
Moreover, detailed legal and economic analysis shows that, even if the “Break-even” rule may appear initially a plausible concept, the rule is not able to achieve efficiently its objectives as presented by UEFA (whereas other means are available to attain such objectives. For additional information, see The Wall Street Journal op-ed published 25 March 2013 – http://online.wsj.com/article/SB10001424127887324077704578357992271428024.html
As far as the integrity of the UEFA competition is concerned, in order to avoid the risk that club X would jeopardize the smooth running of the competition because its owner stops mid season providing funds (the “overspending”), it is not necessary to prohibit such “overspending” (as implemented by the “Break-even rule”), when it is sufficient to require “overspending” to be fully guaranteed (for instance, by means of bank guarantees) before the start of the competition and for its whole duration.
In short, the current prohibition – even assuming it to be justifiable (quod non) in the light of the pursued objective (i.e. integrity) – is in practice illegal because the rule is not proportionate (since it can be replaced by another measure, equally efficient but less damaging as far as EU freedoms are concerned).
In conformity with article 101.2 of the Treaties of the European Union, the complainant requests the European Commission to declare that the Break-even rule is null.
It is important to note this complaint does not at all question the legality of the UEFA rule (also included in the FFP regulation) that states that any club participating in the UEFA competition must prove – before the start of the competition – that it has no overdue payables towards clubs, players and social/tax authorities. In our view, this rule is justified in principle for the attainment of the integrity of the football competition and proportionate to this objective).
A copy of the complaint has been provided to UEFA.
L'avvocato inglese Daniel Geey (@FootballLaw), esperto di Financial Fair Play, ha lanciato via tweet le sue prime riflessioni:
1. The challenge has to pass the 101(1) gateway which is not a foregone conclusion after the Wouters case.
2. If the challenge can pass into the 101(1) gateway, it's likely to be caught by the prohibition either by object or effect.
3. But UEFA have extremely strong 101(3) grounds to argue exemption under competition rules. Though all 4 criteria must be satisfied
4. Complaining to the Commission is an interesting tactic in itself. The Commission's investigation phase isn't usually the quickest.