“Authority should derive from the consent of the governed. Not from the threat of force.” Barbie, Toy Story 3
When Barbie exasperatedly vents words more suited to a treatise by Friedrich Hayek than to an animated doll, the scriptwriters at Disney gave us one of the truly great lines of movie history. Because although spoken by the very embodiment of infantilism – a plastic doll played with by generations of young girls – the maturity of her observation holds true as an expression of natural law.
While our sisters and our cousins were playing with their dolls, the men as boys were kicking our footballs. But that round ball grew up, just as Barbie did in Toy Story 3. Now football is a business. Big business, now worth an estimated £1 billion a year to the UK economy in tax payments alone.
An industry of any substance requires proper regulation: Barbie’s consent of the governed. And so an entire apparatus has grown up around the maturing football economy, extending way beyond the original laws of the game.
Into this apparatus has evolved Financial Fair Play. As discussed here before, the fundamental, though unspoken, aims of FFP are sound. It aims through compromise to hold together the entire social contract of European football, when the threat of breakaway by disaffected members – the game’s financial powerhouses – has for years been a distant shadow looming over its competitions. Far better to extend the social contract, encouraging financial prudence among member clubs, than to shovel great gobs of money into the coffers of the biggest teams (as they do in Formula One for instance), creating atrophy among other teams.
Competition regulators like UEFA naturally devise regulations to achieve such ends, and that brings a risk of breach to the participant. Sanctions are seldom accepted without a fight, so when credible reports emerged today of Paris Saint-Germain and Manchester City being hit with €60 million fines over three years, with restrictions on the number of players they may use and the money they may spend on those they employ, challenges could be expected.
Since at the moment these reports are indeed merely reports, and remain uncorroborated by any official announcment, there is no way of knowing if they are even true (though their provenance seems good). There is no way of knowing for sure whether PSG or City will reject the sanctions laid down against them, though with the ‘Bosman lawyer’ Maître Jean-Louis Dupont prepared to challenge the FFP rules on their behalf there seems a good chance they will.
Here is what Dupont, who has been engaged by an Italian players’ agent, told Le Parisien: “It comes from a good idea but the solution isn’t the right one. [It’s] inadequate and, at the same time it’s illegal with regard to European law. It creates restrictions non competition as follows: limitation on investment, stagnation of the existing competition structure, reduction in the number of transfers, of their value and of the number of players under contract at each club.”
He added: “A detailed legal and economic analysis shows that, even if the obligation for financial balance can seem at first glance ‘compelling’, it doesn’t allow effective attainment of the objectives allegedly pursued. This system will ossify the structure of the competition. Clubs who have the chance to be in the top 12 in Europe will remain so and will even accentuate their dominance.”
Dupont has won before and with such arguments he will surely have the ear of judges in the European courts who are the custodians of free movement in this continent. But will he persuade them as he did in the 1995 Bosman case that made his name? I am of the view he will find this one harder to win.
First, it must be recorded that UEFA is no tyrant. It runs and regulates its own competitions but it knows the limits of its own jurisdiction. It is a sophisticated operator who has played a long and patient game. It engaged early with the European Commission on the issue, whose Competition Commissioner, Joaquín Almunia, said in March 2012 in a joint declaration with UEFA on FFP: “I fully support the objectives of UEFA’s financial fair play rules as I believe it is essential for football clubs to have a solid financial foundation. The UEFA rules will protect the interests of individual clubs and players, as well as the football sector in Europe as a whole. I would like to congratulate President Platini for his leadership on this issue.”
Almunia’s stance is supported by Article 165 of the Lisbon Treaty, which says: “The Union shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and its social and educational function… developing the European dimension in sport, by promoting fairness and openness in sporting competitions.”
Whether FFP promotes fairness and openness in football is moot, as both UEFA and Dupont use the same rules to argue opposite positions, but it is clear the Competition Commissioner thinks it does. But it was not merely the supranational authorities whose support UEFA sought. The clubs who would be regulated were also canvassed through the 197-member European Clubs Association. Platini said in a statement this week of those interest groups that support it: “Politicians, [UEFA’s] congress and the players’ union. Never has a project benefited from such unanimity.”
The enforcer of UEFA’s rules is independent of UEFA itself and staffed by financial heavyweights such as the former president of Belgium, Jean-Luc Dehaene. Though clubs have had years to address their behaviour before sanctions applied, it has demurred from expelling any club from UEFA competitions such as the Champions League. Although no announcement has been made as to what it would do with the money, the financial element of the sanction is likely to be redistributed around European football’s grassroots-development programmes. This would promote the game’s “social and educational function” as dictated by Article 165.
Where paradoxically Dupont might gain some traction is in an area he has not cited as a line of attack. FFP, a pan-European set of regulations, treats different situations in the same way. Although clubs in one jurisdiction may benefit from far-higher revenues than others due to, for instance, divergent broadcasting deals, they enter the same competitions with the same requirement to break even (give or take €45 million). This is the cause of the symptom Dupont describes as “ossify[ing] the structure of the competition”.
But in that alleged weakness also lies FFP’s strength. It is unarguably objective. It does not favour or punish clubs from any jurisdiction versus any other. Indeed, the fact Manchester City, hailing from substantially Europe’s richest league, have been cited among the biggest FFP rebels proves its nation-blindness.
No, FFP’s aims are sound. It abides by European law more than some would have you believe. It is objective. The sanctions it lays down will benefit football development Europe-wide. It has been laid down by a sophisticated and collegiate regulator. It has the consent of the governed and is not born of the threat of force. For as long as there is a coalition of willing clubs subjecting to its rules (and, it must be said, that can never be guaranteed, for some are increasingly irritated by it) the European courts should respect sport’s specificity and its capacity to regulate itself. For if they do not in this, where would it lead?
Journalist and broadcaster Matt Scott wrote the Digger column for The Guardian newspaper for five years and is now a columnist for Insideworldfootball. Contact him at firstname.lastname@example.org.