Recently, with a short statement posted on its website, the Confederação Brasileira de Futbol (CBF) announced the anticipation of its mid-season registration period. Instead of taking place between the 3rd and the 31st of August 2010, as established by the Resolução da Presidencia 02/2005, the (inaccurately) so-called “transfer window” will start on the 20th of July 2010 and end on the 19th of August 2010.
By Stefano MALVESTIO - LLM in International Sports Law (ISDE 2010)
As is known, the registration period is the (only) period during the year in which a football club can register players . In fact, a requisite for a player to play for a club is to be registered at its Association, as only registered players are eligible to participate in organized football. Players may only be registered during one of the two annual registration periods fixed by the relevant Association.
Already in use in many countries since years, the system of the registration period was brought into compulsory effect by FIFA with the issue in 2001 of the Regulations on the Status and Transfer of Players (hereinafter “FIFA Regulations”) . This set of rules was introduced in response to negotiations with the European Commission and lead to the closure of the Commission’s investigation into FIFA regulations on international football transfers, which had been undertaken by Brussels following a number of complaints.
In the version now in force, article 6 of the FIFA Regulations provides that “2. The first registration period shall begin after the completion of the season and shall normally end before the new season starts. This period may not exceed twelve weeks. The second registration period shall normally occur in the middle of the season and may not exceed four weeks. The two registration periods for the season shall be communicated to FIFA at least 12 months before they come into force. FIFA shall determine the dates for any association that fails to communicate them on time. 3. Players may only be registered – subject to the exception provided for in article 6 paragraph 1 – upon submission of a valid application from the club to the relevant association during a registration period. 4. The provisions concerning registration periods do not apply to competitions in which only amateurs participate. The relevant association shall specify the periods when players may be registered for such competitions provided that due consideration is given to sporting integrity of the relevant competition.”
While it is clearly stated that the two registration periods for the season shall be communicated to FIFA at least 12 months before they come into force, nothing is said about a possible amendment or modification to the registration period dates previously established . It is therefore not surprising that the recent anticipation of the Brazilian transfer window generated many contrasting reactions in Brazil. In fact, this is mainly due to the fact that Internacional de Porto Alegre will be able to field three newly acquired players of renown coming from abroad in the first leg of the Copa Santander Libertadores de America 2010’s semifinal against Sao Paulo, taking place on the 28th of July 2010. Particularly the latter club felt somehow harmed by CBF and FIFA’s decision, expressing dissatisfaction through some of its highest representatives .
It might therefore be useful to clarify the situation, putting aside partial considerations driven by the passion for one of the teams involved, and analyzing the juridical framework that regulates the situation.
Interestingly, while, as said, the Regulations now in force do not foresee such a situation, the new ones, that will enter into force on the 1st October 2010 do regulate it. The amendment therein contained basically reflects the content of FIFA Circular 1223, dated 29 April 2010 and sent to all FIFA members. Insofar as the provisions about registration period are concerned, the Circular reads as follows “Under exceptional circumstances, the respective TMS manager may change the dates of a registration period, however only in the circumstances where the registration period in question has not yet started. No alteration will be possible once the registration period inserted into the TMS has commenced. It goes without saying that the system will only allow registration periods in accordance with art. 6 par. 2 of the Regulations”.
Taking into account that the new Regulations were obviously not applied in the present situation, it is reasonable to assume that the anticipation of the transfer window was based upon the provisions of the abovementioned circular.
At this respect, putting aside the questions, firstly, of whether or not a FIFA Circular might legitimately au fond alter the content of the FIFA Regulations and, secondly, of whether or not a registration period that a FIFA Circular compulsory urged to set with at least 12 months of advance should remain subject to the principles established by that Circular , a few other issues of juridical nature might arise.
First of all, it is crystal clear that the key part of the provision is the “exceptional circumstances” under which the dates might be changed. I personally ignore which facts represented exceptional circumstances in the present case, as neither FIFA nor CBF have, at the present day, officially disclosed them . In an interview broadcasted in the popular Brazilian TV channel Rede Globo , Ricardo Terra Teixeira, CBF’s President and FIFA Executive Committee member, declared that the anticipation would benefit Brazilian clubs, after the suspension for 40 days of the Brazilian National Championship, Brasileirão 2010, due to the simultaneous FIFA World Cup 2010. A second alleged reason would be that some clubs were already paying salaries to players while not enjoying their performances. Teixeira as well added that the change was meant to allow the upcoming National Team’s coach to observe players with a view to the friendly match against United States, taking place on the next 10th August . Obviously, whether these facts represent an exceptional circumstance or not, depends on the interpretation given to the term “exceptional”. An expert in Swiss Law, to which application FIFA is submitted, might be required in order to clarify its exact meaning in that jurisdiction; nevertheless this wording suggests something not only uncommon, but even not foreseen or foreseeable. In any case, FIFA Circular 1223 itself states that “Abiding by the registration periods is absolutely essential to implementing the Regulations, so no exceptions may be made to this rule”, therefore unavoidable suggesting the adoption of a restrictive interpretation. Under this point of view, none of the alleged “exceptional circumstances” appears totally respectful of requisites similar to these. Firstly, it can obviously not be called exceptional the fact of the Brasileirão being temporarily stopped because of the FIFA World Cup. Both the occurrence of a worldwide known event such as the FIFA World Cup and the consequent unavoidable suspension of the Brazilian National Championship are known sufficiently in advance and cannot, therefore, be deemed as being exceptional. It was obviously possible to appropriately fix a registration period that would take into account the needs arisen because of the suspension of the Brasileirão respecting the deadline of the 12 months in advance. In this sense, exceptional could be considered an event such as the cancellation of the FIFA World Cup, for sure not the fact that it did take place! Secondly, it is as well not an exceptional circumstance a player being paid a salary without playing. This happens all the time in the world of football. Among others situations, players are paid during their off-season training, they are paid while in holidays, injured, suspended for disciplinary reasons, while they are released to their Associations’ Teams . Therefore, it looks rather difficult to consider such a situation exceptional. The situation of those newly acquired player is not different from that of players acquired during the first registration period: after being signed, they initially train in order to reach an adequate physical condition, and only thereafter, when even up to a couple of months passed, they start playing in official matches. Moreover, as known, football employment contracts are negotiated between clubs, players and their respective agents. It remains within their freedom of contract to agree upon the contractual clauses therein established, as, for instance, to set their effective date . Thirdly, not even the need of the new Brazilian National Team coach to observe the players with a view to the call up for a friendly match looks urgent enough as to represent something exceptional. At this respect, it should be emphasized how on the 12th July 2010 the CBF issued a Circular confirming that the registration period would have remained the traditional one, namely between the 3rd and the 31st of August. As is known, the CBF dismissed the National Team’s coach Dunga on the 5th of July 2010 , therefore obviously creating the need for a new coach to be hired. This circumstance, as well as the new coach possible need to observe potential players, was known by the CBF as per the 12th of July, date when it confirmed the registration period set by the RDP 02/2005. It remains therefore pretty unclear where an exceptional circumstance is to be found in the present case.
Most importantly, attention should be paid to the fact that one of the fundamental principles of the world of football might have been endangered in the present situation. In fact, the so-called principle of the “sporting integrity of the competition” is, understandably, one of the main pillars both of the FIFA Statutes and of the FIFA Regulations , being therein named several times. Moreover, the EU Commission itself regarded “the legitimate objective of integrity of the sport and the stability of championships” as one of the principle that might justify the restrictions imposed to the right to freedom of movement of players through the rules imposed by FIFA . It should not be forgot that the registration period is one of those regulatory aspects of international football that more risks to be put under the scrutiny of the European Court of Justice for the restrictions it inevitably imposes upon the freedom of movement of players . Arguably, one of the legitimate objectives raised to counterbalance such restrictions would be that of the integrity of the sport and the stability of championships. Therefore, such a principle should be duly respected and taken into account in every instance.
As above underlined, the core of the issue in this case is that Internacional de Porto Alegre will be able to field Renan, Tinga and Sobis in the first leg of the Libertadores’ semifinal against São Paulo. This possibility is allowed by the Libertadores’ Regulations, which permit to substitute up to three players from the eligible players list up to 48 hours before the semifinal, provided they are duly registered in their club’s respective Association . At this respect, it is interesting to note how the subsequent registration of eligible players is treated differently in the framework of UEFA Champions League’s Regulations . On one side, Libertadores’ Regulations provide for two different possible changes, the first one being before the Second Stage and the second one before the Semifinals, each of them allowing to substitute up to 3 players. Taking these possible changes place before the beginning of most of the traditional South American registration periods, normally set between the 1st and the 31st of August, an anticipation of that period on behalf of one or more Associations could somehow create inequalities, allowing merely clubs belonging to that or those Associations to register and then line up new players. On the other side, the UEFA Champions League’s rules provide, after completion of the preliminary rounds, only for a single 3-players change, on the 1st of February, before the start of the round of 16. Being this date subsequent to the closure of all traditional European registration periods, set normally until the 31st of January, an anticipation of the beginning of that period on behalf of one or more Associations would not entail any consequence.
The problem should not be underestimated. Try to figure it in a different way. Imagine a semifinal between an Argentinean club and a Brazilian one. What would have happened if, let’s say, the Argentinean Football Association (AFA) anticipated its registration period therefore permitting three newly acquired players to be lined up against the Brazilian club? How would CBF react in a similar situation? As I said before, UEFA Champions League’s Regulations basically permit to avoid such a problem, but imagine FC Barcelona fielding in last Champions League’s semifinal against FC Internazionale three new players, due to a change of the registration period established by the RFEF!
In my opinion, steps should be taken in order to avoid the rise of similar situations.
When some exceptional circumstances do exist, they obviously have to be taken into account and respected, but, at the same time, fairly balanced with the fundamental principle of the sporting integrity of the competition.
As a general guideline, it appears fair to say that a principle such as the one reminding that rules should not be changed during the competition, despite being common and perhaps almost taken for granted, should be continuously kept being paid special attention, as inherent to the football world since its deepest grassroots.