Image rights law,Is Infantino about to replace FIFA’s ageing stalwart with something ‘off the bench’ that can provide the much needed breakthrough?

‘Kick-off’

Almost a year ago today, Gianni Infantino was elected FIFA President, the charismatic Italian had managed the reserve team since October 2009 (Secretary General of UEFA) and took the top job at a time when dressing room in-fighting had nearly relegated his team. Nine months on in November 2016 Infantino spoke candidly to Reuters about his vision for the future specifically in relation to the 2001 FIFA Regulations governing, amongst other things, the Status and Transfers of Players:

“After 15 years it is time to seriously revise it and bring it a little more transparency and a little more clarity.”

This recognition by the ‘gaffer’ must surely have boosted the hopes of the Professional Football Players’ Union (FIFPro), which only 14 months earlier had filed a competition law complaint against the perceived ‘anti-competitive’, ‘unjustified’ and ‘illegal’ transfer system operated by football’s world governing body.

’New signing’

FIFA was required to hastily adopt a new formation at the turn of the millennium, given the state of uncertainty that arguably dominated the footballing landscape following Bosman. (It should be noted that the current regulations were formed in the face of a potential intervention by the European Commission, arguably a key factor in FIFA’s somewhat impulsive tactical change.)

FIFA as an organisation has at every opportunity sought to maintain its autonomy in regulating world football and Sepp Blatter 15 years ago was evidently keen to avoid the ‘perceived danger’ of his team being burdened with a new signing he did not fully approve of.

FIFPro has long campaigned for a transfer system that facilitates greater freedom of movement for players. Yet since 2001 the fundamentally unchanged provisions regarding contractual stability and calculating compensation for breach of contract have continued to plague the organisation like a niggling old injury. However, more ‘traditional’ factions exist within the industry who believe that only intermediaries would benefit from FIFPro’s proposed system of players being afforded greater liberty to change employers without the current contractual restrictions imposed upon them.

‘Half time’

On the whole I am inclined to agree with the opinion of Gianpaolo Monteneri (former Head of Player Status Department at FIFA) who believes that ‘maintaining contractual stability [will be] the key to the long-term survival of football’. Clubs clearly do not want their new often multi-million pound signings being given an option to easily ‘jump ship’ at the first sign of problems.

That is not to say that the current regulations are immune from change. This is evidenced by FIFA’s own reform in October 2009 which removed the €10,000 per annum cap on Training Compensation payable for players between the ages of 12 and 15 and subsequent repeal (re-instatement of the €10,000 cap) in August 2014 as a result of the European Court of Justice decision in the Olivier Bernard case.

‘Media rights’

Aside from the above legalities, a general public perception now exists that there is too much money in ‘the beautiful game’.

It is impossible to get away from the fact that player’s wages and transfers fees have radically increased over the past 20 years. In 1996, the world record transfer fee was held by Alan Shearer (£15 million Blackburn Rovers to Newcastle United). The record now stands at £89m for Paul Pogba’s 2016 summer transfer (Juventus to Manchester United). This near 600% increase is predominately attributed to the rise in the valuation of media rights deals with top clubs consistently receiving greater revenues year on year from broadcasters.

Professional football is now arguably the biggest sports business on planet. Those who dispute this must surely struggle to avoid the fact from FIFA that just under £2.3 billion was spent across Europe’s top five leagues during the 2016 summer transfer window. This spending shows no sign of relenting given EPL Clubs alone spent £218 million during January 2017.

‘Big clubs’

The extent to which FIFPro may be able to show FIFA’s current system operates in the manner they claim remains to be seen. However, ‘big’ clubs in Europe’s top leagues are being provided with ever increasing ‘war chests’ funded by media rights packages and often foreign billionaire investors. (At the time of writing 70% of EPL Clubs are owned by foreign individuals with a net worth exceeding $1 billion).

These clubs are consequently able to pay more for the best footballing talent via salaries and/or transfer fees. Therefore should the Commission decide to take action on the FIFPro’s ‘anti-competitive’ claim, is it likely this would only be in the form of a redistribution mechanism as opposed a wholesale ban on transfer fees given the severe implications of such a system.

Similarly, a transfer cap is also unlikely to remedy any perceived ‘anti competitive’ elements of the current transfer system given that the “big” clubs may no longer be prepared to pay in transfer fees what they are able to remunerate in salaries. Ultimately these clubs would still remain dominant in obtaining elite talent and the overall effect therefore of such a sanction being imposed would be that of an unnecessary artificial restriction over the remainder of the transfer market.

Whilst the ‘highly-inflated transfer fees’ complained about by FIFPro may be addressed, the extent to which the funds may ‘trickle down’ to the other smaller clubs remains less assured.

‘Full Time’

FIFPro are confident their complaint will be upheld and intervention by the European Commission into FIFA’s current transfer system is all but a formality. It is widely recognised that no wholesale amendments to the current regulations would be made without consultation of football’s governing body.

Nevertheless, the action brought by FIFPro arguably provides the perfect backdrop for the football’s controlling parties to participate in addressing their differing approaches concerning the future regulation of contractual stability and the calculation of compensation for breach of contract.

It is my view that FIFA, under new manger Infantino, may now finally (in an attempt to prevent external regulatory influence) take the initiative to collaborate with its partners and formulate a blueprint for an effective and ‘transparent’ transfer system.  This modernisation could finally considerably enhance how transfers within the beautiful game are conducted and regulated.

michael-embra-webMichael Embra, Commercial and Sports Solicitor


If you are a sports professional or body and have any questions about media/image rights or contracts, please get in touch with me for a free, no-obligation discussion.