The compulsory introduction of transfer windows by FIFA in 2002-2003 significantly reduced worker mobility given that the effect of transfer windows on Europe’s domestic leagues is that transfers can only occur during the ‘close season’ and during the months of August and January.
However the validity of transfer windows (in terms of rules relating to freedom of movement) was upheld by the ECJ as far back as 1996 in the Lethonen Case. That case involved the introduction of transfer windows in professional basketball and held that they were justified on the basis of ensuring team stability and ‘regularity’ of sporting competition.
The 12 month transfer ban recently imposed by FIFA on both Real Madrid and Atletico Madrid for breaching rules on the international transfer and registration of players aged under 18 has already been suspended pending the outcome of each clubs appeal to the FIFA appeal committee. Should the FIFA appeal committee uphold the bans it may be that the question as to whether such sanctions are proportionate and whether such restrictions may constitute a breach of the protections conferred by Article 40, Treaty on the Functioning of the European Union (TFEU) in relation to the freedom of movement of workers, will be raised in any appeals brought thereafter.
In September 2015, FIFPro, the union for professional footballers representing in excess of 65,000 players from around the world lodged a formal complaint with the Directorate General for Competition of the European Commission, against FIFA and its member associations, challenging the global transfer market system for football as being, in its view, anti-competitive, unjustified and illegal. The complaint is brought pursuant to Articles 101 and 102 of the TFEU, which prohibit agreements, decisions and practices which limit competition, as well as the abuse of a dominant market position.
Developments in these cases will undoubtedly continue to attract huge media coverage but the possible legal issues arising mean that these cases will also be followed with interest by lawyers throughout Europe.