Written Observation of the Applicants

Moot Court Case

In the Court of Justice of the European Union

Reference to the Court of Justice of the European Union for a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union by the Tribunal of First Instance in Tomalona in the proceedings before the Tribunal of First Instance in Tomalona

Mr. Kwame Eko, Mr. Kofi Eko and F.C. Tomalona (as Applicants) and FIFA, UEFA, and the Football Association of Ghana and Vittoria (as Respondents)

I. Questions posed

In its reference to the Court of Justice of the European Union for a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union, the Tribunal of First Instance in Tomalona posed the following questions:

1.a) Can an international sporting federation apply to a professional sportsman from Ghana a rule according to which clubs must field in league and cup matches a minimum number of domestically trained players, even though this rule applies irrespective of nationality?

b) Are the specific requirements imposed by the Vittoria F.A. to register certain professional football players compatible with the immigration policies relating to free of movement of persons in the EU?

II. Suggested answers

The answers suggested by the applicants to these questions are the following:

1. Articles 18 and 45 of the Treaty on the Functioning of the European Union and Art. 13 of the Cotonou Agreement preclude the application of a rule according to which clubs must field in league and cup matches a minimum number of domestically trained players to a professional sportsman from Ghana.Articles 18 and 45 of the Treaty on the Functioning of the European Union and Art. 13 of the Cotonou Agreement preclude the application of requirements imposed by the Vittoria F.A. to register certain professional football players to a professional sportsman from Ghana.

III. Factual / litigation background

The questions posed by the Tribunal of First Instance of Tomalona stemmed from three separate, but parallel proceedings joined by the Tribunal.

The first case stemmed from Kwame Eko, a national of Ghana, contesting the newly adopted UEFA homegrown rule at the Vittoria Football Association, and the decision not to challenge the homegrown rule of the latter at the Tribunal of First Instance of Tomalona. His grounds were that the UEFA rule seriously compromised his chances of playing for F.C. Tomalona during official matches.

[...]

IV. Relevant rules

The UEFA homegrown rule: Clubs must play with at least six domestically trained players during official matches. A player can be qualified as domestically trained by a club when he has been at the club for three years between the age of 15 and 21, irrespective of his nationality. Minimum three of these domestic players must have received their training at the club itself; the other domestically trained players must have received their training at another club in the same EU Member State. The rule entered into force as from the start of the 2005/06 season.

Vittoria F.A. regulations for registering third country nationals:‘Clubs entered for official professional competitions at national level shall be entitled to register foreign non-Union players, provided that these players fulfill the following conditions, established by the Vittoria F.A, the National Professional Football League and the Association of Footballers in Vittoria:

They must receive an annual salary of minimum € 500.000 net; and They must have played in at least 50% of the matches of the national team of

their country during the last three seasons, barring injury.

V. Main submissions of Union law

1. Procedure

Despite the wording of Question Nr. 1. (a, and b,) of the Tribunal of First Instance in Tomalona, the real meaning of these questions concerns the interpretation of the Treaty on the Functioning of the European Union (Art. 18 and 45) and the Cotonou Agreement. Answering the questions is, therefore, necessary for the national court to make an informed decision. As the European Court of Justice in previous cases (van Gend en Loos1, Costa v. ENEL2) decided, it has a right to extract from questions formulated by national courts the ones which are in its jurisdiction to decide. In Scheer3 the Court held that it had the right to provide the national court making the reference with all the information the latter needed to decide if a certain piece of national legislation was contrary to Union law.

Also, in this regard, it is worth mentioning that although the regulations in question (UEFA rules, Vittoria F.A. rules) are not in the public domain, they are, in fact, “rules (…) aimed at

1 Case 26/62, NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration ECR English special edition 000012 Case 6/64 Flaminio Costa v E.N.E.L ECR English special edition 005853 Case 30/70 Otto Scheer v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] ECR 01197

collectively regulating gainful employment and services” and, as determined in Walrave4, bound to be consistent with EU law.

2. Essence of the case

The first line of reasoning will prove that based on the Court of Justice’s case-law and the Cotonou Agreement, a sportsman holding the citizenship of Ghana is to be considered equal to Union citizens as regards the prohibition of discrimination on grounds of nationality. This means that Article 45 precludes the application of rules such as Vittoria F.A.’s regulations on the registration of third country nationals. Our argument will then proceed to prove that the UEFA homegrown rule, although not directly discriminatory against nationals of other states, nevertheless constitutes indirect discrimination against such persons, therefore the principle established in Bosman5 applies to it and its application is likewise precluded by the Treaty.

a. Direct discrimination against sportsmen from Ghana in Vittoria F.A. rules

As the Republic of Ghana is not a Member State of the European Union, the EU law on the prohibition of discrimination based on nationality in connection to the free movement of workers, as defined in Art. 45 does not per se apply to persons holding the nationality of Ghana. Our first argument will prove that a citizen of Ghana falls into a special category, and cannot be considered to be a third country national in general.The Republic of Ghana belongs to the group of states known as ACP countries. In 2003, the European Union and the ACP states signed the Cotonou Agreement6. Article 13 paragraph (4) of the Cotonou Agreement states:

The treatment accorded by each Member State to workers of ACP countries legally employed in its territory, shall be free from any discrimination based on nationality, as regards working conditions, remuneration and dismissal, relative to its own nationals. Further in this regard, each ACP State shall accord comparable non-discriminatory treatment to workers who are nationals of a Member State.

The wording of and intentions behind this article are identical to those of the first indent of Article 37(1) of the Association Agreement with Poland7, the first indent of Article 38(1) of the Association Agreement between the Union and Slovakia8 and Article 23(1) of the Agreement on partnership and cooperation establishing a partnership between the European Union and their Member States, of one part, and the Russian Federation, of the other part.

4 Case 36/74 B.N.O. Walrave And L.J.N. Koch v Association Union Cycliste Internationale, Koninklijke Nederlandsche Wielren Unie Et Federación Española Ciclismo [1974] ECR 01405, 17-185 Article 48 of the Treaty precludes the application of rules laid down by sporting associations under which, in matches in competitions which they organize, football clubs may field only a limited number of professional players who are nationals of other Member States. Union royale belge des sociétés de football association ASBL v Jean-Marc Bosman Case C-415/93 [1995] ECR I-04921, Operative part, 2. 6 2000/483/EC: Partnership agreement between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Union and its Member States, of the other part, signed in Cotonou on 23 June 2000 (OJ 2000 L 317 p. 3–353)7 Europe Agreement establishing an association between the European Union and their Member States, of the one part, and the Republic of Poland, of the other part, signed in Brussels on 16 December 1991 and approved on behalf of the Union by Decision 93/743/Euratom, ECSC, EC of the Council and the Commission of 13 December 1993 (OJ 1993 L 348, p. 1)8 Europe Agreement establishing an association between the European Union and their Member States, of the one part, and the Slovak Republic, of the other part, approved on behalf of the Union by Decision 94/909/ECSC, EEC, Euratom of the Council and the Commission of 19 December 1994 (OJ 1994 L 359, p. 1)

These three latter articles have been determined to have direct effect by the judgments Pokrzeptowicz-Meyer9, Kolpak10 and Simutenkov11, respectively. These judgments established the right of third country nationals from countries having an association agreement with the Union to be free from discrimination on grounds of nationality in regard to working conditions, remuneration or dismissal, and to invoke this right before national courts. As Article 13 paragraph (4) of the Cotonou Agreement has identical wording to the other three agreement articles, it also has direct effect.

The specific requirements imposed by the Vittoria F.A. to register certain professional football players are:

Clubs entered for official professional competitions at national level shall be entitled to register foreign non-Union players, provided that these players fulfill the following conditions, established by the Vittoria F.A, the National Professional Football League and the Association of Footballers in Vittoria:

They must receive an annual salary of minimum € 500.000 net; and They must have played in at least 50% of the matches of the national team of

their country during the last three seasons, barring injury. These requirements clearly affect third country nationals in a discriminatory way in regard to working conditions, remuneration or dismissal, and make a distinction between nationals of Vittoria and non-Union nationals. According to the case-law of the European Court of Justice, such directly discriminatory measures can only be applied in the cases for which express derogations were provided in the Treaty12. As that is not the case here, the Vittoria F.A. regulations, when applied to a citizen of Ghana (or any ACP state) are not in conjunction with relevant Union provisions (Cotonou Agreement).

b. Indirect discrimination on nationality grounds in the UEFA homegrown rule

According to the “homegrown rule” established by UEFA and entered into force as from the start of the 2005/06 season:

Clubs must play with at least six domestically trained players during official matches. A player can be qualified as domestically trained by a club when he has been at the club for three years between the age of 15 and 21, irrespective of his nationality. Minimum three of these domestic players must have received their training at the club itself; the other domestically trained players must have received their training at another club in the same EU Member State.

Although it applies irrespective of nationality, a rule which requires a professional sportsman to spend three years between the ages of 15 and 21 at a certain club, or at clubs in a certain Member State is intrinsically easier to comply with for citizens of that Member State, as the majority of people are more likely to spend these early years of their career in their home country13. The rule therefore is liable to affect foreign players – including third country

9 Case C-162/00 Pokrzeptowicz-Meyer [2002] ECR I-104910 Case C-438/00 Deutscher Handballbund eV v Marcos Kolpak [2003] ECR I-0413511 C-265/03 Igor Simutenkov v Ministerio de Educación y Cultura, Real Federación Española de Fútbol [2005] ECR I-0257912 Case 2/74 Reyners v. Belgian State [1974] ECR 631.13 This was recognized by the Court in Case C-278/94 Commission of the European Union v Kingdom of Belgium [1996] ECR I-04307, where the rule requiring the completion of secondary schooling in certain schools

nationals – more than local ones. Therefore, this rule constitutes indirect discrimination14 on grounds of nationality (one which breaches the Union rights of Member State citizens as well as those of certain third country nationals), and is precluded from application by Union law.

As established above, discrimination based on nationality against a sportsman from Ghana is not in conjunction with EC law. As the European Court of Justice consistently held that indirect discrimination which has the same effect as directly discriminatory measures is equally a breach of Union law, the UEFA homegrown rule cannot be applied to a citizen of Ghana, based on the case-law of the European Court of Justice (Bosman, Kolpak, Simutenkov).

c. Additional notes

When interpreting the law of the European Union as it applies to the case, it should be noted that either direct or indirect discrimination against third country nationals who wish to pursue professional careers in the Member States, and therefore become permanently settled there is against not only various Union international (Association and/or Cooperation) agreements, but internal Union legislation as well. The Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents15 establishes – without prejudice to rights stemming from international agreement – the status of a long term resident third country national. Once the requirements (including 5 years of residence) have been satisfied, the third country national has a right to apply for this status, which, in turn, gives him/her various rights comparable to the Member State’s own citizens, and the right of residence in other Member States. This directive indicates the policy of the Union of recognising and rewarding long term residence and professional attachment to Member States and/or organisations operating in Member States of third country nationals. Discrimination against them is, therefore, not permissible.

Also noteworthy, and an argument against any form of discrimination of third country nationals, is the role of sport “as a means of promoting greater involvement of immigrants, for example, in the life of society”, of combating racism and intolerance, as recognised by the document “The European Model of Sport”16.

was declared indirectly discriminatory, as it was more likely to affect (the children of) migrant workers.14 In Case C-237/94 John O'Flynn v Adjudication Officer [1996] ECR I-02617, at 20 the Court declared: It follows from all the foregoing case-law that, unless objectively justified and proportionate to its aim, a provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect migrant workers more than national workers and if there is a consequent risk that it will place the former at a particular disadvantage. 15 OJ L 16, 23.1.2004, p. 44–53 16 Consultation Document of DG X, 1998

Written Observation of the Respondents

Moot Court Case

In the Court of Justice of the European Union

Reference to the Court of Justice of the European Union for a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union by the Tribunal of First Instance in Tomalona in the proceedings before the Tribunal of First Instance in Tomalona

Mr. Kwame Eko, Mr. Kofi Eko and F.C. Tomalona (as Applicants) and FIFA, UEFA, and the Football Association of Ghana and Vittoria (as Respondents)

I. Questions posedIn its reference to the Court of Justice of the European Union for a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union, the Tribunal of First Instance in Tomalona posed the following questions:

1.a) Can an international sporting federation apply to a professional sportsman from Ghana a rule according to which clubs must field in league and cup matches a minimum number of domestically trained players, even though this rule applies irrespective of nationality?

b) Are the specific requirements imposed by the Vittoria F.A. to register certain professional football players compatible with the immigration policies relating to free of movement of persons in the EU?

II. Suggested answersThe answers suggested by the respondents to these questions are the following:

1.Neither part a, nor part b, of the first question fall inside the jurisdiction of the European Court of Justice. The Court cannot decide on the compatibility of national rules with Union law.

In the case the Court decides to answer the essence of the questions:

a. European Union law does not preclude the adoption of rules by international sporting associations according to which clubs must field in league and cup matches a minimum number of domestically trained players, if this rule applies irrespective of nationality, as the rule protects legitimate general interests with actions proportional to its aim.

b. The European Court of Justice does not have to answer b, part of the second question as it has no connection to any of the cases before the Tribunal of First Instance of Tomalona.

In the case the Court decides to answer the question:

European Union law does not preclude the adoption of rules requiring a certain amount of annual salary or membership in the national team for participation in a Member State’s clubs for a third country national by national sporting associations.

III. Factual / litigation background

The questions posed by the Tribunal of First Instance of Tomalona stemmed from three separate, but parallel proceedings joined by the Tribunal.

The first case stemmed from Kwame Eko, a national of Ghana, contesting the newly adopted UEFA homegrown rule at the Vittoria Football Association, and the decision not to challenge the homegrown rule of the latter at the Tribunal of First Instance of Tomalona. His grounds were that the UEFA rule seriously compromised his chances of playing for F.C. Tomalona during official matches. [...]

IV. Relevant rules

The UEFA homegrown rule:

Clubs must play with at least six domestically trained players during official matches. A player can be qualified as domestically trained by a club when he has been at the club for three years between the age of 15 and 21, irrespective of his nationality. Minimum three of these domestic players must have received their training at the club itself; the other domestically trained players must have received their training at another club in the same EU Member State. The rule entered into force as from the start of the 2005/06 season.

Vittoria F.A. regulations for registering third country nationals:

‘Clubs entered for official professional competitions at national level shall be entitled to register foreign non-Union players, provided that these players fulfil the following conditions, established by the Vittoria F.A, the National Professional Football League and the Association of Footballers in Vittoria:

They must receive an annual salary of minimum € 500.000 net; and They must have played in at least 50% of the matches of the national team of

their country during the last three seasons, barring injury.

V. Main submissions of European Union law

1. Procedure

The defendants call the attention of the Court of Justice to the fact that according to Art. 267 of the Treaty on the Functioning of the European Union, neither part of the first question falls in the jurisdiction of the European Court of Justice, as they concern the compliance of two rules made by sporting federations with European Union law, in relation to which national courts have jurisdiction. The settled case-law of the European Court of Justice (see case ___________) , which national courts have as a source to rely on when referring questions, has held the same in relation to jurisdiction. Therefore, the European Court of Justice has no basis to answer the first question.

In the case of the second part of the first question, where the Tribunal of First Instance of Tomalona inquires about the compatibility of Vittoria F.A.’s rules of registration with the immigration policies regulating free movement of persons in the Union, the defendant Vittoria F.A. would like to remind the European Court of Justice that said rules of registration are not contested in, nor have any bearing on any of the proceedings before the Tomalona Tribunal. A decision on this question is therefore not necessary in order for the national court to make its judgment or judgments.

2. Essence of the case

a. The special nature of sport

The European Court of Justice has stated consistently that European Union law applies to sport, only in so far as it constitutes an economic activity (see case ___________), therefore acknowledging its dual nature. ___________ have stressed the special significance of sport in “forging identity and bringing people together”. Keeping the connection of sportsmen and -women to their home country alive, and retaining the best sportsmen in their own countries’ teams is a reason to have more restrictive, but non-discriminatory regulations of both national and international sports organizations.

b. Vittoria F.A.’s rules

The registration rules of Vittoria F.A. were drawn for the purposes of ensuring that from the pool of third country nationals wishing to play professionally in Vittoria, those of best abilities would be able to play in Vittoria’s teams. The set minimum of remuneration also serves as a basic level of protection for employees. The registration rules, therefore, do not fall in the field of prohibitions for free movement of workers, but to the protection of Vittoria’s cultural heritage, in the area governed by national law. Consequently, the Vittoria F.A. registration rules have no connection to European Union law.

c. UEFA homegrown rule

The rule requiring a connection to a certain club or other clubs in a certain country in the case of six players fielded in a match serves to maintain a sufficient level of identification with the club or state while building no obstacles in the way of free movement of workers or, more importantly, being discriminatory in nature.

The length of professional life of sportsmen means that their training period – and the period of their mobility – starts earlier than in other professions. Consequentially, fulfilling a requirement of three years of belonging to a club between the ages of 15 and 21 is not necessarily easier fulfilled by citizens of the country in which the club operates. Taking into consideration the fact that only six of eleven fielded players have to fulfil this requirement, the obstacles created are not disproportional to the aim of ensuring stability of a team and the identification of players with and loyalty to teams and leagues as opposed to following only economic benefits.

It should also be noted that the rule is consciously non-discriminatory in nature: it applies regardless of citizenship, therefore affecting the citizens of the club’s state as well as other nationals. In this, the principle established by the Court of Justice in the ___________ judgment is satisfied.

In a further case of ___________, the Court of Justice established four conditions, by the fulfilment of which rules that “are liable to hinder or make less attractive the exercise of a fundamental freedom guaranteed by the Treaty” can nevertheless be adopted. These requirements are application in a non-discriminatory manner; justification by imperative requirements in the general interest; suitability for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain it. The UEFA rules apply regardless of nationality: they are not discriminatory. As recognised by _____________, sport and its power of building identity are a point of general interest: the UEFA rules merely attempt to prevent the ruthless application of business rules in this area. Clubs operating in a certain state are responsible for training players who can participate in the national team, this duty is another legitimate national interest to be protected. The homegrown rule requires a certain attachment to the football club or its home country on behalf of certain players, while by no means preventing “foreign” players being fielded, thus being adequate and proportional. As the __________ conditions are also fulfilled by the UEFA rule, it cannot be considered contrary to European Union law.