TRANSFER MARKET: TRUE OR FALSE

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With Deadline Day upon us once again, I'm taking a quick look at some of the most popular transfer market beliefs and explaining why they are true or false.

A CONTRACT OF EMPLOYMENT CAN BE MADE SUBJECT TO A SUCCESSFUL MEDICAL EXAMINATION

FALSE

Article 18 of FIFA's Regulations on the Status and Transfer of Players specifically precludes football clubs from entering into a contract, subject to a successful medical examination. Further, FIFA's Dispute Resolution Chamber has made it very clear in a number of cases that clubs must obtain all the necessary information to be able to make an informed decision with regards to a player's health and fitness, before concluding a contract of employment.

Cases include:-

Player X v Club Y

The Dispute Resolution Chamber in this case held that: "Art. 30 of the Regulations (now. Art. 18) gives clear and unmistakable indications with regard to the relation between medical examination and the validity of an employment contract, due to its unambiguous wording, the relevant clause does not leave space for interpretations, the said provision is mandatory and calls for a strict application, consequently, Art. 11 point 3 of the employment contract is null and void, since, contrary to what Art. 30 of the Regulations is requiring, it makes the relevant agreement conditional upon the positive results of a medical examination, the question of whether a medical examination were carried out prior to the signing of the agreements or not could remain open, in fact, the club would have had to make any necessary medical examination before concluding the agreements (cf. Art. 30 par. 2 of the Regulations), therefore, even if, for whatsoever reason, it had decided to have them carried out in February 2003 only ... it would have done so at its own risk - on account of the foregoing the two agreements concluded between the parties on 5 January 2003 are valid"

Player X v Club Y (2)

The Dispute Resolution Chamber held in this case that: "Club Y made the player concerned to undergo a medical test before signing the employment contract. Furthermore, it noticed that the club did not complete the test phase before signing the employment contract by receiving the test results. And finally, the Dispute Resolution Chamber noticed that the respondent club dismissed the employment contract after receipt of the test results, twelve days after the signature, based on the contract clause 6.5. According to Article 30(2) (now. Art. 18) of the above-mentioned Regulations and in the light of the above made explanations, the Dispute Resolution Chamber decided that by its conduct, the club Y made itself liable to bear the consequences of the signed contract. Furthermore, the Dispute Resolution Chamber had to consider the clause 6.5 of the employment contract between the parties involved, which says that the employment contract shall not be valid in case of negative test results. In this regard, the Dispute Resolution Chamber referred to Article 30(1) of the above-mentioned Regulations, according to which the validity of an employment contract cannot be made conditional upon the positive results of a medical examination. In this respect, the Dispute Resolution Chamber decided that the clause 6.5 of the employment contract does not hinder the validity of the employment contract and therefore does not release the club from its obligation to bear the consequences of the signed contract according to Article 30(2) of the mentioned Regulations."

Player A v Club B

In this case, FIFA's Dispute Resolution Chamber required to consider a clause "in fine" of the employment contract which read as follows: "It is understood that the player has to pass all the medical exams in the satisfaction of the club not later than 31 July 2005." The Chamber advised that Article 18 was applicable, in this matter, and clearly states that the validity of a contract between a professional and a club may not be made subject to a positive medical examination. As a result, medical examinations must be concluded by prospective clubs prior to concluding the contract of employment. In this particular case, the medical examination was to be undertaken after the date on which parties concluded the contract. In light of the above, the Chamber held that the Clause "in fine" of the employment contract was in breach of Article 18(4) and was therefore not legally binding.

Member Participation in Unauthorised Competitions: Protecting Official Competitions in light of the EC Decision in the ISU Case

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THE ISU COMPLAINT

In 2015, Dutch Skaters Mark Tuitert and Niels Kerstholt, filed a complaint against the International Skating Union (ISU) in relation to lifetime bans imposed for participation in unauthorised skating competitions (out with the ISU schedule). The skaters argued that such severe sanctions were unreasonable and prevented them from pursuing their careers as well as placing unreasonable obstacles for other organisations looking to promote events and invite participants.

The skaters argued that ISU eligibility rules, in particular Rule 102 of the ISU General Regulations, were in direct violation of Article 101 of the Treaty of the Functioning of the European Union (TFEU) which prohibits restrictive business practices:

“The following shall be prohibited as incompatible with the internal market: All agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade by Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market.”

Generally speaking, sporting rules are subject to EU competition law when the organisation imposing the rules, or the companies and persons affected by the rules, are engaged in an economic activity. Sporting rules are generally found to be compatible with EU law if they pursue a legitimate objective and if restrictions imposed are inherent and proportionate to the aim of the objective.