Social dialogue in sport: theory and practice - the case of professional football

1. Social dialogue in sport: theory and practice - the case of professional football drs. Arnout Geeraert arnout.geeraert@kuleuven.be kuleuven.be/SGR

2. Content of this lecture • Legal basis of EU social dialogue • Social dialogue in practice • Legal implications of the recent agreement on minimum requirements for standard player contracts

3. What is social dialogue? • “a means to conclude agreements and to foster cooperation between employers and employees, sometimes with the assistance of a third party (often the government” (ILO).

4. Social dialogue at the EU-level • Tripartite dialogue (social partners – Council and Commission) • Tripartite Social Summit for Growth and Employment • Enables the social partners at European level to contribute to the economic and social strategy of the EU -> Not relevant for sport • Bipartite dialogue • Cross-industry social dialogue • Sectoral social dialogue -> Sectoral social dialogue committees -> Relevant for sport

5. Bipartite social dialogue • Sectoral social dialogue committees • Commission decision of 20 May 1998 • Social partners can make a joint request to the commission to set up a committee • They have to meet certain criteria, which are assessed by the Commission

6. Sectoral social dialogue committees Criteria for organisations (Commission decision of 1998) • (a) they shall relate to specific sectors or categories and be organised at European level; • (b) they shall consist of organisations which are themselves an integral and recognised part of Member States' social partner structures and have the capacity to negotiate agreements, and which are representative of several Member States; • (c) they shall have adequate structures to ensure their effective participation in the work of the Committees. -> applied rather loosely; Commission decides

7. Legal basis for social dialogue • Social chapter of the Treaty on the Functioning of the EU • art. 151 ff. TFEU • Introduced by the Treaties of Amsterdam and Nice • Special role for the Commission • One of the key elements of European social policy is the encouragement of social dialogue (art. 154(1) TFEU).

8. The role of the European Commission • The Commission has the legislative initiative in the EU • With every legislative proposal in the social policy field, the Commission has to • Consult the relevant social partners about the possible direction of EU measures (first phase) • Consult the relevant social partners about the content of the proposal (second phase) -> art. 154(2) and 154(3) TFEU

9. “Consult”, but... • What if the social partners do not agree with the legislative proposal? • The social partners have the possibility to autonomousy start formal negotiations concerning the Commission’s legislative initiative • 9 months to reach a mutual agreement • during which the Commission cannot continue its own legislative proposal -> art.154(4) TFEU

10. What if there is no legislative initiative by the Commission? • For instance in sport, it is unthinkable that the Commission would propose legislation (autonomy of sport) • Social partners are free to autonomously conclude agreements! (art. 155(1) TFEU) • On their own initiative! • Social partners can jointly adopt a text • But... What about the implementation of that agreement?

11. The implementation of the agreement • Two “routes” : voluntary route or Council decision • (a) Voluntary route (155(2) TFEU) • According to national procedures and practices • Based on the different structures of industrial relations within the respective Member States • Not generally binding and do not form an integral part of EU law: no direct legal effect • Responsibility to implement lies with the national members of the European social partner organisation -> European organisations conclude the agreement, national members need to implement it in order for it to have direct legal effect -> Do they have to? UNCLEAR: “agreements concluded at Union level shall be implemented” (art. 155(2) TFEU) -> No CJEU case law; Franssen (2002): “duties and obligations have to be derive from the internal rules of organisations”

12. The implementation of the agreement • (b) implementation through Council decision (art. 155 (2) TFEU) • Social partners can submit their agreement to the Council of the EU • Council decides by QMV or UM, depending on the subject • Council cannot make amendments: reject or accept • In practice: Directive, to be implemented in national legislation within a certain period • EU social dialogue can be autonomous source of social policy legislation!

13. Sectoral Social Dialogue in practice • Agreements, implementated through voluntary route or Council decision • BUT also other kinds of texts, not implemented through voluntary route or Council Decision • “Soft” instruments! • Used to raise awareness, disseminate good practice, help build consensus and confidence • Process-oriented texts, declarations, joint opinions, tools • NO obligations!

14. Sectoral Social Dialogue in practice • Currently 41 sectoral social dialogue committees • Since 1998, they have produced:

15. Sectoral Social Dialogue in practice Only 10 “agreements”, the rest are soft tools! How come? • A lack of pressure from the Commission and the Member States for the development of an ambitious European social policy • A lack of interest in social dialogue on employers’ side (Pochet, 2007) • A lot of “joint opinions”: illustrates that social dialogue is mainly used as a tool to influence EU policy in general (not only social policy) (De Boer et al., 2005)

16. The sectoral social dialogue committee in professional football The genesis • 1995: Bosman ruling: football transfer rules had to be abolished • 2001: agreement on new FIFA transfer rules between FIFA & UEFA and the European Commission • Commission invited FIFA and UEFA to encourage clubs to start or to pursue social dialogue with representative bodies of football players (“effective method to find common solutions on employment matters”) • Commission has been supporting projects for the consolidation of social dialogue in football ever since (funding to a nr of projects)

17. The sectoral social dialogue committee in professional football • 2008: establishment of the Sectoral Social Dialogue Committee in Professional Football

18. Why do they participate? • UEFA: to keep control of the governance of European football • ECA: to be involved in the governance of European football • Involved because others are involved • By far the most powerful stakeholder organisation in football • EPFL: increase credibility and raison d’être • EPFL is a very important partner in social dialogue, but not so much in other issues • FIFPro: to put pressure on UEFA to change its policy into a more workers oriented direction • Gains the most

19. Why do they participate? Governance shifts in European football Geeraert, A., Scheerder, J., Bruyninckx, H. (2012). The governance network of European football. Introducing new governance approaches to steer football at the EU level. International Journal of Sport Policy & Politics, published online as I-first.

20. Possible themes? Doping Image rights Club obligations Player’s obligations Written contract Trial periods Sanctions Salary (capping) Extension options Pension funds Home grown players rule Non-EU nationals Artificial pitches Players’ agents Status of players Registration of players Registration periods Loan of players Maintenance of contractual stability (termination of contracts) Contract duration (fixed term) Players under the age of 18 Third party influence on clubs Protection of minors Training compensation Solidarity payments Release of players International match calendar

21. What not? • FIFA transfer rules • FIFA is not a party in the committee • UEFA has to follow the rules issued by FIFA (FIFA & UEFA statutes) • Therefore, not comparable to North-America, where collective bargaining agreements govern the employer-employee relationships between the owners of professional sports teams and players' associations

22. The agreement Minimum requirements in Standard Player Contracts • Why minimum requirements? • Many abuses in Eastern European countries regarding players' rights • E.g. postponement of remuneration, the absence of any guarantee in case of illness and/or injuries, penalties from 10% to 100%of salary, bonuses unilaterally determined bythe club management, etc. (FIFPro 2012) • In most Western European countries, however, high-standard MRSPC are already in place

23. The negotiation process • Already in 2006, FIFPro, EPFL, and UEFA agreed upon the content of the MRSPCs, elaborated by a working group that brought together members of those three parties. • July 2008: Sectoral social dialogue committee for professional football established • February 2011: Deadlock. ECA and EPFL did not want an agreement with legal repercussions for their members <-> FIFPro • August 2011: Compromise agreement on the implementation of the MRSPC • April 2012: agreement is ratified by the relevant internal organs of the parties

24. The agreement Why did it take such a long time? -> IMPLEMENTATION! • Agreement was implemented through the voluntary route! • Uncertainty: is this legally binding? • ECA and EPFL did not want a legally binding agreement for their members (members: “what’s in it for us?”) • Solution: “this Agreement commits the parties to use best endeavours to ensure the implementation at national level where possible” • Still... Problems with ratification process! Stronger European leagues did not want to ratifythe agreement!

25. The agreement Solution? Side-letter agreement excluding 16 countries from the agreement! Nowhere mentioned!

26. Legal effects of the agreement • Implementation: voluntary route or council decision (Directive)? -> VOLUNTARY ROUTE! • PLUS: “use best endeavours” • PLUS: 16 countries excluded! • Is there any legal impact? • European collective agreements: special nature because there are various actors who can be legally affected • European-level organisations, national affiliates,individual members

27. The legal effects on the signatory parties On UEFA, EPFL, ECA and FIFPro • Art 155(2) TFEU: “Collective bargaining agreements shall be implemented” • Suggests that the Treaty makers wanted legal rights and obligations to be created between signatory parties • Bound by private international law (signing parties reside in different countries) • Article 18 of the agreement: “(..)in the context of article 155 TFEU commits the Parties to use best endeavours to ensure the implementation at national level where possible, using the most appropriate legal instruments and determined by the relevant parties at national level (...)” • The consequenses on the signatory parties are therefore minimal (obligation of means)

28. The legal effects on national affiliates of the European organisations On national leagues, clubs and national player unions • “shall be implemented” in article 155(2) TFEU can be seen as directed towards national affiliates as European organisations cannot implement the agreement. • However, according to ILO convention 154 and international labour law, governments should refrain from any interference that would restrict the right to bargain freely. They cannot impose anything. • Therefore, the TFEU cannot oblige national partner organisations to implement the agreement • Based on the internal rules of the European organisations, the European organisations could push their national affiliates towards compliance with the agreement. • Unlikely that EPFL and ECA will do this. UEFA could implement the agreement in its club licensing system

29. Legal effects on clubs and footballers • TFEU does not give a legal basis for the presumption that European collective agreements have direct legal effects on individuals. • The agreement needs to be implemented into national collective bargaining agreements!

30. Conclusion • Implementation at national level is necessary in order to have any effect. • Therefore, a European Professional Football Social Dialogue Taskforce has been set up. • Experts from FIFPro, ECA, EPFL, FIFA and UEFA • Coordinates the promotion and implementation of the agreement on a country-by-country basis • “the group will use best endeavours to convince the national parties to buy in to the agreement”

31. The future? FIFPro sees the agreement as a “victory”, but... • Very limited legal implications • An agreement through a Council decision (EU Directive) is unthinkable + UEFA has 53 members, EU 27 MS • Stronger leagues are not willing to enter into an agreement. EPFL had no mandate to conclude the agreement.