December 2023 Roundup
A roundup of notable football law news and decisions from December 2023:
Charges against Mikel Arteta found not proved
The FA charged Arsenal FC’s manager Mikel Arteta (“MA”) with a breach of the FA Rules, r. E3.1 on 16 November 2023 ‘following comments that he made in media interviews after Arsenal’s Premier League game against Newcastle United on Saturday 4 November [2023]’ (“the Charge”).
On 14 December 2023 it was announced that the FA had failed to prove the Charge against MA. The FA Regulatory Commission’s written reasons are available here.
The written reasons provide clarity that Participants can make legitimate criticisms of refereeing decisions and standards but that a line is crossed when such criticisms go further than expressing a legitimate criticism in reasonable terms and/or which personally criticise and/or insult a Match Official (see paragraphs 30-34 of the written reasons).
Additional notable points from the Regulatory Commission’s written reasons are:
The test to be applied when determining a charge brought pursuant to FA Rules, r. E3.1 is the ‘reasonable bystander’ test. When determining the meaning of the words or conduct used, and whether the same amounted to a breach of the FA Rules, r. E3.1, a Regulatory Commission is required to determine the same from the perspective of a typical follower of English football understanding the words and/or conduct used in the context in which they were delivered (see paragraphs 28-29).
The Regulatory Commission seemed ambivalent on the significance of MA being a high-profile Participant in respect of the Charge or similar offences (see paragraphs 39-41). In this author’s opinion there should be no issue here; whether a Participant has committed a breach of FA Rules, r. E3.1 or not is simply a matter of fact, not whether the Participant is high profile or not. Whether a Participant is high profile or not, then the attention and responsibilities that come from such a position or lack thereof may amount to aggravating or mitigating factors, as the case may be, when considering the appropriate sanction to impose.
Yongge Dai sanctioned by EFL
Yongge Dai, the owner of Reading FC, has been sanctioned by an EFL Disciplinary Commission with an immediate £20,000 fine and a further £50,000 fine to be activated on 12 January 2024 should Mr Dai fail to comply with a previous Disciplinary Commission decision dated 15 August 2023 which required Mr Dai to pay 125% of the club’s forecasted monthly wage bill into a deposit account (see Football Law’s August 2023 Roundup).
The Disciplinary Commission’s written reasons dated 19 December 2023 are available here.
The Disciplinary Commission also extended the period for which Mr Dai must maintain the deposit account (see paragraph 65 of the written reasons).
The written reasons provide helpful guidance on the proportionality of sanction and the unusual circumstance of non-compliance with an order of a Disciplinary Commission.
FIFA Disciplinary Commission publishes written reasons in Luis Rubiales decision
As explained in Football Law’s October 2023 Roundup, Luis Rubiales has been banned from all football-related activities at national and international levels for three years following his inappropriate, uninitiated, and uninvited conduct at the FIFA Women’s World Cup 2023 final on 20 August 2023.
The FIFA Disciplinary Commission has now published its written reasons for its decision, which are available here.
Aston Villa FC
Members of Aston Villa FC’s (“AVFC”) Fan Advisory Board have reported AVFC to the FA for an alleged failure to comply with the FA Rules, r. M8 in respect of AVFC’s proposed change to its club crest. If the FA considers AVFC to have not complied with the FA Rules, r. M8, then the FA has the power to instruct AVFC to use a previous version of the club crest (see the FA Rules, r. M10). A helpful explanation of the circumstances of the proposed change to the club crest (in addition to a confusing partial change to the club crest last season) is provided in this article by My Old Man Said.
Morecambe FC and Jason Whittingham charged by EFL
Morecambe FC and its owner John Whittingham have been charged by the EFL for failing to comply with an Agreed Decision entered with the EFL on 17 August 2023 and which required Mr Whittingham to pay 125% of the club’s forecasted monthly wage bill into a deposit account and maintain the same until 30 June 2024 (see Football Law’s August 2023 Roundup).
Millwall FC
Millwall FC has brought a claim against its sponsor Huski Chocolate. Few details of the claim are available, but City AM provides some helpful initial information in this article.
Swindon Town FC
Swindon Town FC (“STFC”) and its director and majority shareholder Clemente Morfuni have been charged by the EFL for a breach of, it is understood, the EFL Regulations, reg. 21.1, 114.1 and 114.6 for STFC’s failure to declare and publish a ‘Significant Interest’ share acquisition in STFC that took effect in September 2022 and for Mr Morfuni’s failure to report the same to STFC.
Pontypridd United FC
As noted in Football Law’s November 2023 Roundup, FA Wales issued 18 charges against Pontypridd United FC (“PUFC”) in relation to alleged offences that occurred during the 2022/23 and the current 2023/24 season concerning non-payment of players’ wages, failure to register players and playing ineligible players.
On 11 December 2023, FA Wales announced that PUFC had been sanctioned with an immediate six-point deduction and a further 135-point deduction suspended until the end of the 2024/25 season on condition that PUFC does not field any ineligible players before that deadline. PUFC also received a ban on registering new players for two registration periods, suspended until the end of two registration periods following the decision, and believed to also be on condition that PUFC does not field any ineligible players before that deadline.
Forest Green Rovers FC
A Professional Game Board Sub-Committee ordered the FA Cup first round match between Forest Green Rovers FC (“FGR”) and Scarborough Athletic FC to be replayed following FGR’s fielding of an ineligible player in the original fixture that took place on 14 November 2023.
FGR fielded an ineligible player contrary to rule 109 of the Rules of the FA Challenge Cup. This is the second time in this year’s FA Cup that a club has been charged and sanctioned for failing to comply with the Rules of the FA Challenge Cup relating to players. As noted in Football Law’s November 2023 Roundup, Barnsley FC were removed from the FA Cup for a similar offence. This LawInSport article ‘Navigating The FA Cup Player Eligibility Rules for 2023-24 and pitfalls to avoid for football clubs’ written by Lydia Banerjee and Joseph Bryan of Littleton Chambers provides helpful advice to clubs on how to comply with those rules.
For those interested, FGR won the original fixture 5-2, won the replayed fixture 4-2 on 12 December 2023, but have since been knocked out of the FA Cup following a second-round 3-0 loss to Blackpool FC on 19 December 2023.
Premier League vote on amortisation rules
A sufficient majority of the Premier League’s (“PL”) clubs, shareholders of the FA Premier League Limited, voted in favour of amending the PL’s Rules to limit the period that a player’s transfer fee can be amortised to a maximum of five years. The amendment is now reflected in rule A.1.38 of the PL Rules. The PL Rule amendment reflects a similar rule introduced in June 2023 for clubs bound by UEFA’s Club Licensing and Financial Sustainability Regulations (see Annex G, para. G.3.4(c)).
Kieran Maguire provides a helpful explanation of the rule amendment in this episode of the Price of Football podcast.
FIFA Football Agent Regulations (“FFAR”)
Yet another appearance for the FFAR in a Football Law monthly roundup.
As explained in Football Law’s November 2023 Roundup, on 30 November 2023, the FA announced that the FA Rule K arbitration between agencies CAA Base, Wasserman, Stellar and ARETÉ and the FA in respect of the FA’s National Football Agent Regulations (“NFAR”) (which implement the FFAR at the domestic level) had finished, with a declaration being made that the ‘the Fee Cap and the Pro Rata Payments Rules in the NFAR… will be in breach of the Competition Act 1998’.
The FA Rule K Tribunal’s decision has now been published and is available here.
On 18 December 2023, a court ruling in Brazil suspended the application of the Confederação Brasileira de Futebol’s NFAR, as explained in this LinkedIn post from Tomas Pereda Rueda of Elite Law SA.
On 30 December 2023, FIFA published Circular 1873, which referred to the preliminary injunction ordered by the District Court of Dortmund in Germany on 24 May 2023, effective until the European Court of Justice rules on the FFAR’s compatibility with European Union competition law (“the Germany Injunction”). As identified in FIFA Circular 1873, the Germany Injunction suspends the application and enforcement of the following FFAR provisions:
‘The service fee cap (article 15 paragraphs 1-4)
The rules concerning service fee payments (article 14 paragraphs 6, 8 and 11)
The client pays rule (article 14 paragraphs 2 and 10)
The rules regarding the timing of service fee payments (article 14 paragraphs 7 and 12)
The prohibition of double representation (article 12 paragraphs 8-10)
The reporting obligations (article 16 paragraphs 2 h), j), k) and 4)
The rules regarding disclosure and publication (article 19)
The submission rule (article 4 paragraph 2; article 16 paragraph 2 b); article 3 paragraphs 2 c) and d); article 20; and article 21)
The rule that service fee payments must be made via the FIFA Clearing House (article 14 paragraph 13)’.
FIFA Circular 1873 explains that FIFA has initiated appeal proceedings against the Germany Injunction but fails to address how it will address decisions made in England, Spain, France, Italy and now Brazil. Nonetheless, in order to comply with the Germany Injunction, FIFA Circular 1873 also explains as follows:
‘In order to comply with the Injunction, FIFA will suspend the implementation of the FFAR for any transfer which has a link to the European Union. Implementing the Injunction only for transfers linked to the European Union would create a situation of unequal legal standards within the international transfer system, in particular between Europe and the rest of the world. As the world governing body of football and a prudent and responsible regulator, FIFA has a duty to prevent such uncertainty and inequality and protect competitive balance at a worldwide level.
In light of the foregoing, on 30 December 2023 the Bureau of the Council approved the worldwide temporary suspension of the FFAR rules affected by the above-mentioned German court decision, until the European Court of Justice renders a final decision in the pending procedures concerning the FFAR.
In this light, we recommend all the member associations to temporarily suspend the equivalent provisions from their national football agent regulations, unless they conflict with mandatory provisions of the law applicable in their territory’ (emphasis removed).
While there appears to be some infelicitous wording across the first two paragraphs of the above-quoted section of FIFA Circular 1873, it is this author’s understanding that the effect of FIFA Circular 1873 and the Bureau of the Council’s decision (see Football Law’s FIFA overview for an explanation of the Bureau of the Council’s role and powers) is ultimately that those parts of the FFAR affected by the Germany Injunction (as listed above) are temporarily suspended on a worldwide basis.
On 31 December 2023, and to reflect the Rule K arbitration proceedings in respect of the NFAR in England and FIFA Circular 1873, the FA published its new NFAR effective from 1 January 2024.
FIFA, UEFA and the European Super League
On 21 December 2023, the Court of Justice of the European Union (CJEU) found that certain of FIFA’s and UEFA’s rules relating to the prior approval of interclub football competitions, such as the European Super League, are contrary to EU Law. The decision of the CJEU is available here, and the press release for the same is available here.
In summary, FIFA’s and UEFA’s position as interclub football competition controllers is legal but the rules and methods by which they exercise such control must be compliant with EU law.
Linklaters’ SportingLinks’ article ‘Checks and balances: the Court of Justice sets framework for sport governing bodies powers’ provides a helpful summary of the CJEU’s decision (in addition to the CJEU’s decision also published on 21 December 2023 that dismissed the International Skating Union’s (“ISU”) appeal against an earlier decision of the General Court of the CJEU that confirmed that the ISU’s rules relating to prior approval of international skating competitions and enforcement of the same infringe EU law).
The matter will now return to the Commercial Court in Madrid, Spain for final determination.
UEFA’s homegrown players requirements
On 21 December 2023, the CJEU also found that UEFA’s rules relating to homegrown players could be contrary to EU law.
In a press release for the CJEU’s judgment, it is noted:
‘As regards competition rules, the Court next holds that the rules on home-grown players could have as their object or effect the restriction of the possibility for clubs to compete with each other by recruiting talented players, regardless of where they were trained. High-level football is a sector where talent and merit play an essential role. However, it will be for the national court to determine whether those rules restrict competition as a result of their very object or because of their actual or potential effects. If that proves to be the case, it will nevertheless remain possible for UEFA and the URBSFA to demonstrate that those rules may be justified under the conditions recalled by the Court in its judgment.
As regards the free movement of workers, the Court holds that the rules in question may give rise to indirect discrimination, based on nationality, against players coming from other Member States. Here again, however, it remains possible for UEFA and the URBSFA to demonstrate that those rules nevertheless encourage recruitment and training, and that they are proportionate to that objective’.
The CJEU’s judgment is available here.
The FA and government respond to Raising the Bar review into the future of women’s football
The FA has provided its response to Karen Carney’s independent review of women’s football.
The FA’s response:
Notes the recently announced creation of a new company for the running of the FA Women’s Super League and the FA Women’s Championship (as explained in Football Law’s November 2023 Roundup);
That the FA is continuing to explore additional investment into the women’s game but notes that ‘women’s professional game receives no ongoing solidarity payments as the [English Football League] and [National League System] do from the Premier League’; and
That the FA is working towards equal prize money between the women’s FA Cup and the men’s FA Cup.
The Government has also provided its response to the independent review, endorsing the ten strategic recommendations made by the review.
6 January 2024