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Interview: Ján Figel’ (European Commission)

figel bratislava4 Interview: Ján Figel (European Commission)

If you consider yourself a political junkie on top of being an EPL newshound, then we certainly have quite the interview for you today.

With FIFA’s proposed ‘6+5’ rule to place limits on the number of foreign-born players in domestic club teams rearing its ugly head in the press once again in recent weeks,  we here at EPL Talk thought it best to go straight to the top to get the European Union’s official reaction for ourselves, and we’ve done just that.

Here, we feature Ján Figel’, the European Commissioner for Education, Training, Culture and Youth.  His jurisdiction also covers sport issues, and it is for that reason why we approached him for a written interview to get his thoughts on FIFA’s controversial proposal as well as such topics as the European Court of Justice’s landmark 1995 ruling on the Jean-Marc Bosman case, who the Commissioner has had to work with on the issue of ‘6+5’ and how often, and also whether or not ‘6+5’ has been much of a ‘water-cooler’ topic of discussion within the Berlaymont building, which houses the headquarters of the European Commission, the executive branch of the EU.

First of all, Commissioner, for the benefit of any of our readers who may be new to the realm of European politics, could you please describe for us what all your job entails, especially in relation to sport?

Figel’: My main areas of responsibility are education, vocational training, culture and youth policy, but I am also the European Commissioner for sport issues. Sport is not an area in which the European Commission has any formal powers according to the EC Treaty, so your readers are probably wondering, “Why is there a European Commissioner for sport, then?” Well, the answer is that many areas of sport fall within the scope of Community law, especially when we talk about sport as an economic activity. Then, for example, the EU’s competition law and internal market rules apply to sport.

But of course, sport is not like any straightforward economic activity; it has health benefits, social aspects and educational value in addition to purely economic elements. This specific nature of sport was highlighted in the Commission’s main policy document in this area, which we call the ‘White Paper on Sport‘, published in 2007.

It was governmental and non-governmental stakeholders from the Member States that asked the European Commission to reinforce the promotion of European sport; hence the White Paper.  The White Paper was the first time that all the diverse Court judgments and other relevant decisions and developments in sport were drawn together into one coherent document, to present a one-stop, comprehensive treatment of sport at the EU level.

My job consists of listening to sports organizations and stakeholders, as well as Member State authorities, to facilitate contacts between the various interested parties and head off potential problems before they germinate. I am also following up on the White Paper’s list of 53 tangible actions at EU level in sport, actions that, taken together, are known as the ‘Pierre de Coubertin Action Plan’. These actions include things like facilitating a social dialogue with sport stakeholders, to support employees and employers, for example, or coordinating EU approach to the fight against doping in sport.

Last month, the Institute for European Affairs released a report declaring that FIFA’s proposed ‘6+5’ rule does in fact comply with European Community Law and the principle of free movement of workers.  What has been your reaction to the report’s findings, and does the fact that FIFA commissioned the report affect its credibility?

Figel’: It is well-established that professional football players are ‘workers’ under EU law. So, for the European Commission, the EU’s rules on the free movement of workers, and the principle of non-discrimination on the basis of nationality, clearly apply. This has been made clear by the European Court of Justice in various judgments, including the famous Bosman ruling in 1995: a system of quotas based on nationality would simply be illegal under current EU law.

My services are analyzing the report (a 200 page document) and will meet its authors and FIFA to have an exchange of views on the report’s main conclusions.

At this stage, it seems to me that the report by INEA is not adding new significant insights into this debate. The main idea behind the report is that the 6+5 rule would not infringe EU law, as it is not based on nationality, but on the eligibility to play for a national team. However, the Commission remains of the opinion that the 6 + 5 Rule, even when it is re-phrased to refer to “those eligible to play for the national team”, still ultimately implies as a result a quota-based system based on nationality, because obviously only nationals could play for the national teams.

The European Commission is the defender of EU law, and as such, cannot agree to an illegal system. So, as long as FIFA keep on proposing the 6 + 5 rule as it is currently formulated, the Commission will not be able to endorse the application of the rule within the European Union.

It’s as simple as that: the 6 + 5 rule cannot apply within the EU.

Much noise is made about the ‘specificity’ of sport that I mentioned earlier. The specific nature of sport, or its ‘specificity’, has also been repeatedly acknowledged by the Commission and the European Court of Justice over the years, so that European jurisprudence permits some derogations from the rigorous application of Community laws in certain cases. But the specificity of sport cannot be used to justify the ’6 + 5′ rule: the specificity of sport cannot be used as an argument to justify a general exemption from the application of EU law, which is what the ’6 + 5′ rule aims to do.

One should also recognize that the EU itself enjoys its ‘specificity’. The EU is a unique organization, not comparable to any other experience of regional integration in the world, as the Treaty on which the EU is founded grants a series of rights and freedoms directly to EU citizens. Looked at this way, the specificity of the EU and of its rules should also be taken into account by international sports federations when setting the rules of the game.

I am frequently asked if the Commission can ever reach agreement with FIFA on this issue. For me, this question is largely beside the point: it’s ultimately a matter for the European Court of Justice to decide. If FIFA were to impose the ’6+5′ rule in the EU, any professional football clubs or players who felt that they were treated unfairly by the rule could take the issue to the Court. And they would win.

Of course, the Commission is in dialogue with sports organizations, including FIFA, and is looking into ways of reaching agreement in ways that are compatible with EU law. That way, we can avoid lengthy and weary legal battles from developing in the European courts.

When reminded of the controversy surrounding FIFA’s (and UEFA’s, lest we forget) proposed limits on foreign players in club sides, many people think back to the ECJ’s Bosman ruling. Considering that that was well over a decade ago now, do you feel that public reaction to the ruling would be any different if it was handed down today as opposed to back then?

Figel’: I don’t think it is useful to speculate on where we’d be if there had been no Bosman case, but one thing is clear: if the equivalent of the Bosman ruling had only been handed down now, in 2009, I expect the ruling would be applauded as much now as it was then by the footballers concerned, as well as all those with a love for ‘The Beautiful Game’.

Besides, there has been much talk about the “out-of-datedness” of the Bosman ruling. The INEA report affirms that the Court would give a different ruling on the same case nowadays, considering the “negative” developments induced by the 1995 ruling. To that, I can respond that the Court not only confirmed the reasoning behind the ruling, but it also extended its effects to professional footballers belonging to countries with whom the EU has signed particular agreements as recently as in 2003 (Kolpak ruling) and 2005 (Simutenkov ruling).

Obviously ‘6+5’ has been a very contentious issue which inevitably has had people of all walks of life talking about it.  Are you reminded of it very often by your colleagues at Berlaymont?

Figel’: As I said earlier, my primary areas of responsibility are in education and training, culture and youth policy. But EU initiatives in those areas tend to have a much more medium- to long-term perspective. Therefore, they do not hit the headlines all too often. That is quite different when it comes to sport, and especially football! ’6+5′ certainly sparked many discussions in the corridors of the Commission.

Speaking hypothetically, if FIFA gets its way and ‘6+5’ is fully implemented, is there any concern within the European Community that domestic leagues in other parts of the world would gain ground in terms of quality of competition at the expense of their European counterparts?

Figel’: As I mentioned earlier, if FIFA decide to ignore our advice, and impose the 6+5 rule in the EU, I would expect the issue to land in the lap of the European Court of Justice pretty quickly. All it takes is for one professional football club or player to feel that he was treated unfairly by the rule, and he could take the matter to the Court. On the strength of existing jurisprudence, as well as the fundamental principle of the freedom of movement of workers in the EU, and the principle of non-discrimination on the grounds of nationality, the outcome is, in my view, and without prejudice to the opinion of the Court, utterly predictable: the 6+5 Rule would have to be struck down within the EU.

Considering that EPL Talk focuses largely on the Barclays Premier League in England, I feel somewhat obliged to ask: Where it regards ‘6+5,’ have you heard more from higher-profile associations in countries like England, Spain and Italy – countries whose bigger club teams may feel that they would have more to lose with a rule like ‘6+5’ in place – than associations that don’t normally get as much of the spotlight?

Figel’: My contacts with the sporting world are mainly through trans-national organizations, such as UEFA, ECA (European Club Association), EPFL (the Association of European Professional Football Leagues), FIFPro (the international players’ union), FIFA and the IOC & EOC (the International and European Olympic Committees) and others. I have not so far been directly approached by the leagues of the bigger countries on the topic of 6+5.

This may be because of my dialogue with UEFA. You see, UEFA have proposed a promising alternative to the FIFA ’6+5′ proposal: the “Home-Grown Player Rule”.As your readers may already know, this refers to the rules adopted by UEFA in 2005 for its competitions. The Home-Grown Player Rule is currently being phased in gradually. The Rule applies to the ‘A’ list of 25 players, and says that the ‘A’ list should have a minimum of eight “home-grown trained” players by the 2008-09 season. These ‘home-grown’ players would have been trained between the ages of 15 and 21 for at least three years in one training centre belonging to the club or another centre of the same national football association.

The European Commission has analyzed this proposal, and in May 2008 concluded that the Home-Grown Player Rule does not constitute any direct discrimination, and that it seems to be compatible with EU law. This distinguishes the rule from the FIFA 6 + 5 proposal. A further review of the HGP rule is scheduled for 2012, by when the rule will have been fully operational.

In doing my research for this interview, I was unable to find out which football team(s) you support, if any. Are there any teams in particular – both club and country, although the latter seems a little more obvious given your nationality – that you support, and how would ‘6+5’ affect them specifically?

Figel’: I traditionally support Slovan Bratislava in my country – Slovakia. In Europe, I like to watch some of the English, Spanish and German teams. As I hope to have made clear, the 6+5 rule would simply be illegal under current EU law, as long as it is a system of quotas based on nationality. Therefore, I would not expect it to have any effect on these teams at all: the rule cannot be applied within the EU.

Finally, how do you see the controversy surrounding ‘6+5’ playing out?  Is it even possible to accurately speculate on how long it will take before the matter is finally put to rest?

Figel’: In the light of the Commission’s analysis of the UEFA Home-Grown Player Rule, we believe it is possible for sporting organizations to come up with proposals to bring more balance to the game of football without resorting to illegal direct discrimination. Such proposals have to be based on criteria other than nationality, such as criteria related to the training and education of players. We have explained this to FIFA, and we’ll be having further discussions with them about the issue over the next few months.

For more information on Commissioner Figel’, feel free to visit his homepage on the EC’s official website.

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