June 23, 2020
ジャンプリンクテキスト
Starting in mid-March 2020, almost all domestic and international football (or soccer, for United States readers) competitions across the world were suspended or postponed, due to the global spread of the COVID-19 pandemic and the measures taken by governments to combat it. In Europe, football activity continued only in Belarus, where it notably did so with fans still being able to attend in person.
In the unprecedented context of this public health crisis, the vast majority of football’s governing bodies in Europe decided to call off competitions played by amateur and semi-professional clubs, as well as by women’s professional teams. For male professional football, however, it was considered essential that domestic competitions be resumed and completed in order to preserve their integrity, as well as for economic reasons. On this basis, football associations and leagues—in coordination with State authorities—have actively worked towards resuming the 2019/20 season in safe conditions.
On May 16, 2020, Germany’s top league became the first football competition in Europe to resume its season, albeit in empty stadiums and in accordance with a strict health protocol. Since then, other professional competitions have resumed (notably in Croatia, the Czech Republic, England, Estonia, Hungary, Italy, Poland, Portugal, Russia, Serbia, Slovenia, Spain, Switzerland, and Turkey) or will resume in the coming days (such as in Azerbaijan, and Georgia). Conversely, a number of national governing bodies (such as in Belgium, France, Malta, the Netherlands, Scotland, and Wales) decided to end their domestic professional football competition(s) prematurely.
The uncertain fate of the remaining games of the 2019/20 season has given rise to entirely novel regulatory and legal issues. This note addresses three key questions concerning the impact of the COVID-19 pandemic on the laws and regulations related to football at the European level.
In short: no, but in theory only. In practice, a cut-off date for the 2019/20 football season must be set in order to prevent a massive disruption of the 2020/21 season and safeguard the economic interests of all stakeholders.
As an initial matter, the governance of football on a worldwide basis is structured in the form of a pyramid:
In its capacity as the international governing body of football worldwide, FIFA establishes fundamental principles and rules that apply to all participants, in amateur and professional football alike. In this respect, the FIFA Regulations on the Status and Transfer of Players (RSTP) provide “global and binding rules concerning the status of players, their eligibility to participate in organized football, and their transfer between clubs belonging to different associations” (Article 1.1).
Pursuant to the RSTP, in order to play for a club, a professional player must be registered with a national association (Article 5.1). This registration can only occur during the two annual registration periods (known in Europe as the “summer and winter transfer windows”), the duration of which must not exceed 12 and 4 weeks, respectively (Articles 6.1 and 6.2). The RSTP require that each national association inform FIFA, at least one full year in advance, of the start and end dates of its own domestic football season as well as of both registration periods (Annexe 3, Article 5.1(1)).
Although the RSTP do not set any limit on season length, in practice a football season usually lasts 12 months. For the 2019/20 season, the majority of the football associations in Europe (including England, France, Germany, Italy, and Spain) declared to FIFA that the season would start on July 1, 2019 and end on June 30, 2020. However, starting in mid-March 2020, with the COVID-19 pandemic significantly disrupting football activity throughout Europe, it became unclear whether all domestic competitions could be completed by June 30 as originally planned.
Given the numerous regulatory and legal issues arising from these unprecedented circumstances, FIFA published on April 7, 2020 a set of recommendations and guidelines to address the legal consequences of the COVID-19 pandemic (FIFA’s COVID-19 Guidelines). These guidelines were supplemented on June 11, 2020, with FIFA’s new official proposals and positions on the impact of COVID-19 (FIFA’s FAQ document). This document provides additional clarity on frequently asked questions from national associations, confederations and other football stakeholders (essentially clubs, players, and leagues), as well as solutions to new regulatory challenges.
Regarding the issue of season length, FIFA’s COVID-19 Guidelines allow for the end date of the 2019/20 season to be postponed (and the registration periods amended) at the request of any national football association:
“In view of the current situation, on a case-by-case basis following analysis by the FIFA administration while bearing in mind global coordination, it is proposed that:
(i) all requests for an extension of the current season finishing date be approved;
(ii) all requests to extend or amend registration periods that have already commenced be approved, provided that their duration complies with the maximum limit (i.e. 16 weeks) established in the RSTP;
(iii) all requests to amend or postpone registration periods that have not commenced be approved, provided that their duration complies with the maximum limit (i.e. 16 weeks) established in the RSTP; […]” (emphasis added).
It follows that, according to FIFA’s regulations and its COVID-19 Guidelines, the 2019/20 season in Europe could theoretically be completed any time later this year, next year, or even later. In practice, however, UEFA’s regulations on club competitions effectively set a deadline for the European football season to conclude, as explained immediately below.
In parallel with domestic competitions, the best club(s) of each national association can participate in the competition(s) organized annually by their respective “continental” confederations.
In Europe, UEFA member associations may enter a certain number of clubs in the UEFA Champions League (UCL) and the UEFA Europa League (UEL) competitions through their top-tier domestic competitions (i.e., the top-tier league and national cup(s)). Unanimously considered as the most prestigious male competitions at the European level, UCL and UEL contribute to the worldwide fame of participating clubs and constitute a significant source of revenue for those clubs. Therefore, the criteria for admission to the 2020/21 UEFA club competitions will, in practice, be crucial factors that will incentivize national football authorities to limit the duration of their domestic 2019/20 football seasons.
Under the original versions of the respective regulations, to be eligible to participate in the 2020/21 UCL and UEL competitions, clubs were required, inter alia, to have qualified “on sporting merit” (i.e., following a 2019/20 season duly completed and fairly played) and UEFA member associations were to provide the lists of their nominated clubs by the end of May 2020. Since mid-March, however, because the completion of domestic competitions was—and still is—uncertain due to the COVID-19 pandemic, UEFA has adapted these criteria to take into account the effects of the crisis (see, for example, “Resolution of the European football family on a coordinated response to the impact of the COVID-19 on competitions” dated March 17, 2020).
In this context, on April 23, 2020, UEFA published its “Guidelines on eligibility principles for 2020/21 UEFA Club Competitions – COVID 19” (UEFA’s COVID-19 Guidelines). Under these guidelines, national associations are strongly encouraged to complete any suspended domestic competitions. Accordingly, by May 25, 2020, member associations were to either inform UEFA of “the planned restart of their domestic competitions” or, if those domestic competitions had been (or were to be) ended prematurely, explain “the special circumstances justifying such premature termination and [] select clubs for the UEFA club competitions 2020/21 on the basis of sporting merit in the 2019/20 domestic competitions […].”
For domestic competitions that have already resumed (or will soon resume), UEFA’s COVID-19 Guidelines did not set an official deadline to provide the list of clubs nominated for the 2020/21 UCL and UEL competitions. However, during meetings held on June 17-18, 2020, the UEFA executive committee decided that its 55 member associations shall communicate their respective nominations by August 3, 2020 at the latest, effectively setting that date as the new deadline for their 2019/20 football seasons to conclude (if resumed). It also recommended that they all set the same end date of October 5, 2020 for the 2020 summer registration period.
Importantly, the specificities of the professional football ecosystem provide another compelling reason to limit the extension of the 2019/20 season. Alongside their primary sports activities, clubs (and competition organizers) conclude various types of commercial agreements (relating to broadcasting, sponsoring, merchandising, etc.) that are often linked to the specific timeframe of the football season, i.e., in Europe, from July 1 to June 30 of the following year(s). The extension of the 2019/20 season may have an impact on these contracts, as well as on employment contracts with players, providing an additional incentive to conclude the season as soon as practicable.
In short: subject to any potential specific provisions in a given contract or in applicable domestic laws, the mere postponement of the original end date of the 2019/20 season may not be a valid reason to amend the terms and conditions of player employment contracts or club transfer agreements without the consent of all relevant parties. However, if the original terms of these contracts are enforced, players will not be permitted to register and play for another club before the start date of the 2020 summer registration period, which may be postponed due to the pandemic.
Professional football teams consist primarily of players who are parties to employment agreements with their respective clubs. According to Article 18(2) of FIFA’s RSTP, these contracts shall expire at the end date of a given season, i.e., typically on June 30 in Europe. Further, the RSTP provide that a professional player is “free to conclude a contract with another club if his contract with his present club […] is due to expire within six months” (Article 18(3)). In other words, during the last six months of his current employment contract, a player is authorized to agree with another club the terms and conditions of the contract that the parties will then sign on the start date of the next season, i.e., typically on July 1 in Europe.
In addition, players can be loaned or permanently transferred from their club to another club:
In the context of the COVID-19 crisis, any amendment of the original end date of the 2019/20 season and, therefore, of the start date of the 2020/21 season, will have an impact on these agreements. For example, if the resumed domestic and/or UEFA competitions extend after June 30, 2020—which will very likely be the case—competing clubs could face a situation in which, from July 1, 2020 onwards, certain players will no longer be under any contractual obligation to play for them. Conversely, players may not be able to join their new (or rejoin their parent) club until the new start date of the 2020 summer registration period.
It has been reported that all clubs in Europe may be affected by such a situation. To take an example, in the French club of Paris Saint-Germain FC (PSG), the employment contract of defenders Layvin Kurzawa, Thomas Meunier and Thiago Silva, as well as that of striker Edinson Cavani, are all due to end on June 30, 2020. In the event that the 2019/20 UEFA Champions League competition were to resume in August 2020—as is currently planned—these players could not play the remaining games for PSG, unless parties agreed on a temporary (or long-term) extension of their contracts.
Subject to specific provisions in the relevant agreements (such as unilateral extension clauses in players’ contracts) or in the applicable domestic law (as has been discussed by Agustín Amoros Martínez with respect to Spanish law), the terms and conditions of these agreements cannot be amended without the consent of all parties. As a result of this predicament, and in order to ensure the integrity of football competitions, FIFA’s COVID-19 Guidelines propose that clubs and players agree to extend any expiring agreements and to delay the start date of any new agreements:
“It is acknowledged that, as a general rule, employment agreements shall be governed by national law and the contractual autonomy of the parties. Having said this, and consistent with article 18 paragraph 2 of the RSTP, it is proposed that:
(i) Where an agreement is due to expire at the original end date of a season, such expiry be extended until the new end date of the season;
(ii) Where an agreement is due to commence at the original start date of a new season, such commencement be delayed until the new start date of a new season;
(iii) In the event of overlapping seasons and/or registration periods, and unless all parties agree otherwise, priority be given to the former club to complete their season with their original squad, in order to safeguard the integrity of a domestic league, [national association] competition and continental competition.
The above shall apply to international transfer agreements by analogy. […]” (emphasis added).
Further, FIFA’s FAQ document dated June 11, 2020 clarifies that “FIFA strongly urges all parties to negotiate any extensions or delays [of expiring or new agreements] in good faith and on terms that are equitable and reasonable” (emphasis added).
Indeed, this unprecedented situation may result in arduous negotiations between clubs and players, as certain players may use these circumstances to their personal advantage, for example by asking for significant compensation in exchange for agreeing to extend their current contracts. On the other hand, certain players may refuse to extend their contracts temporarily for fear of being injured during the remaining games of the 2019/20 season and thus being unable to find another club with which to conclude an employment contract for the next season(s). According to an English media report, Charlton Athletic FC—a club located in southeast London that plays in Championship (the second highest league in England)—is currently facing precisely this situation with some of its players, including players who were loaned to the club for the 2019/20 season.
At the same time, in situations where permanent transfer agreements have been concluded in recent months and are due to commence on the original start date of the 2020/21 season, the question arises as to whether signing clubs will take the risk of the relevant player being injured while playing with his “former” club beyond June 30, 2020. This situation could have arisen for Ajax Amsterdam player Hakim Ziyech, whose transfer to the English club Chelsea FC was the subject of a deal concluded in February 2020 for a reported fee amount of EUR 40 Million. However, in April 2020, the Dutch football governing body became the first in Europe to end its professional football season prematurely, thereby preventing such a predicament from arising in Ziyech’s case.
In short: following a decision to end the 2019/20 season before its completion, football’s national governing bodies must make additional decisions regarding the final ranking of teams in domestic competitions, the awarding of champion titles, and the issue of clubs’ promotion/relegation between leagues. In doing so, national associations and/or leagues must take into account the requirements set out in UEFA’s COVID-19 Guidelines regarding the amended admission criteria for the 2020/21 UCL and UEL competitions. Nevertheless, any aggrieved clubs could challenge these decisions before the relevant jurisdiction, in accordance with the domestic laws and regulations applicable to football.
As mentioned above, on April 23, 2020, UEFA published COVID-19 guidelines that are “meant to cover top tier domestic competitions giving access to the 2020/21 UEFA club competitions,” while simultaneously providing that “every National Association and/or League should be able to determine how to deal best with other domestic competitions (i.e. youth, amateur, etc).” In other words, UEFA will not review the decisions of its member associations as to the fate of the remaining games to be played in competitions other than top-tier ones, nor will it involve itself in issues related to champion titles and the promotion/relegation of clubs in any domestic competitions, regardless of tier.
Conversely, UEFA wants to make sure that clubs participating in the 2020/21 UCL and UEL competitions will satisfy all admission criteria, including having “qualified for the competition[s] on sporting merit.” In this respect, UEFA member associations are strongly encouraged to consider all possible options to complete the 2019/20 season of their top-tier competitions in their original format, or in any other formats “which would still facilitate clubs to qualify on sporting merit […].”
At the same time, UEFA’s COVID-19 Guidelines anticipate that national associations “might have legitimate reasons to prematurely terminate their domestic competitions” due to the COVID-19 pandemic, such as in the following circumstances:
In such cases, UEFA’s COVID-19 Guidelines require that national associations determine the clubs nominated for the 2020/21 UCL and UEL competitions “on the basis of sporting merit in the 2019/20 domestic competitions,” namely by relying “on objective, transparent and non-discriminatory principles.”
Importantly, UEFA has expressly warned that it reserves the right to refuse or reevaluate the admission of any club if it considers that the relevant football governing body has not complied with the aforementioned guidelines and/or if “there is a public perception of unfairness in the qualification of the club.”
At present, several European national associations (in Belgium, Bosnia & Herzegovina, Cyprus, France, Gibraltar, Liechtenstein, Luxembourg, Malta, the Netherlands, Scotland, and Wales) have decided to end the 2019/20 professional competitions prematurely as a result of the COVID-19 pandemic and the government measures taken in response. Seeking the fairest and most equitable decision that would also satisfy the “sporting merit” criterion required by UEFA regulations, football governing bodies have adopted different solutions to the issues concerning the final ranking of teams in domestic competitions, champion titles, and the promotion/relegation of clubs. For example:
As indicated by the foregoing examples, the decisions that have been or will be made by football’s national governing bodies in connection with ending their 2019/20 seasons prematurely will inevitably leave certain clubs feeling aggrieved and, hence, are likely to result in lawsuits. It is therefore essential that these decisions have a solid legal basis and be fair in terms of the principles of sport.
While this note has addressed certain key questions concerning the impact of the COVID-19 pandemic on laws and regulations related to football at the European level, this unprecedented and unforeseen crisis of course raises a number of additional complex issues in the context of football and sports more generally, such as disputes regarding agreements that cannot be performed as the parties originally anticipated due to the pandemic. Our International Arbitration team remains available to discuss and to answer specific questions you may have regarding such issues.
