FREE MOVEMENT OF PLAYERS IN THE EUROPEAN UNION MICHELE COLUCCI www.colucci.eu info@colucci.eu Valencia, CEU 2018

EC TREATY AND EU CITIZENSHIP Every person holding the nationality of a Member State shall be a citizen of the Union. (art. 17 EC). Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect. (art. 18 CE).

FREE MOVEMENT OF WORKERS Artt.39 - 42 EC. Workers have the right to: accept offers of employment actually made; move freely within the territory of Member States for this purpose; to stay in a Member State for the purpose of employment; to remain in the territory of a Member State after having been employed in that State.

THE EC TREATY Self employed persons: Right of establishment(artt. 43-48 EC) and Freedom to provide services (artt. 49-55 EC): the right to take up and pursue activities as self-employed persons and to set up and manage undertakings .

CASE LAW OF ECJ: evolution Definition of «worker»: A PERSON PERFORMS SERVICES OF SOME ECONOMIC VALUE FOR AND UNDER THE DIRECTION OF ANOTHER PERSON IN RETURN FOR WHICH HE RECEIVES REMUNERATION (Lawrie-Blum, C-66/85). «Community meaning»(Unger, C-75/63). Fundamental Principle: broad interpretation (Levin, C-53/81). Exceptions and derogations: strict interpretation (Kempf,C-139/85).

EQUAL TREATMENT BAN ON “DIRECT” DISCRIMINATIONS Art. 12 EC on the basis of nationality Art. 39 EC:… Access to employment Pay Employment conditions Association agreement, Co-operation agreement, and so on. SPORT: Balog case, Simutenkov, case

« COVERT DISCRIMINATIONS » NO « COVERT FORMS OF DISCRIMINATION” which, by the application of other criteria of differentiation, lead in fact to the same result . (cause 152/73 Sotgiu) YES, only in case of « objective reasons »; proportionality test!

THE UEFA HOMEGROWN PLAYER RULE Homegrown: player trained by a club for 3 years when he is between 15 and 21 years old 2006/2007 4 up to 25 2007/2008 6 up to 25 2008/2009 8 up to 25 No discrimination on the basis of nationality.

Reverse discrimination “National law” v. “EU law”: Different scope different goals EU Law does not apply to purely internal matters.

Discriminatory act and limit to free movement ordinary legislation, Collective bargaining agreements, Regulations of private associations,(Bosman, C-415/93): FIFA, UEFA, Limits to free movement: Public administration; Public order and security Public health

TERRITORIAL SCOPE The EUROPEAN UNION: 27 Member States New scenario in the European Union Market: the 2+3+2 rule!

The case law of the ECJ “Sport is subject to Community law in so far as it constitutes an economic activity within the meaning of Article 2 of the Treaty” . Walrave case, C-36/74. Donà v. Montero case, C- 13/76(nationality clause). sports or economic activity? C-51/96 Deliège case”, C-176/96, Lethonen case, Meca – Medina case(doping).

THE BOSMAN case cause C -415/93 DAVID v. GOLIAH! Sport= economic activity= the end of transfer compensation Quid training ? The new FIFA regulations on Status and Transfer of Players

CONVERGENCE BETWEEN FREE MOVEMENT AND COMPETITION RULES Art. 81 - 82 EC: NO agreement which may affect trade between MSs and which have as their object or effect the prevention, restriction or distortion of competition. NO “abuse of dominant position”. BOSMAN case BALOG case (never delivered). PIAU on players’ agents

Keeping in mind that... EU players are: EU citizens Workers Their rights are enshrined in the Treaty and must be granted!