The FIFA "6+5" quota system: legal admissibility under the terms of the treaty of Lisbon.

Lange, Andreas

I. Introduction

European football undoubtedly is a very popular sport. Therefore, it is not surprising that the market values of the largest football clubs in Europe varied between EUR 55 mio and EUR 116 mio in the Season 2006/2007 with the most expensive teams (1) reaching levels far beyond EUR 300 mio each. (2) In the past 15 years there has been a significant increase of the proportion of foreign professional player in European football leagues. (3)

For this reason there have been and there are strong efforts to introduce player quotas. These quotas were and are meant to support honourable aims, but indeed could not persist under European Community Law in the past. According to the ruling of the European Court of Justice (ECJ) in the cases "Dona" (4), "Bosman" (5) and "Simutenkov" (6) player quotas even reach beyond sports law.

The so-called "6+5" Rule and the "home-grown players" Rule (7) have to be designated as recent examples to the aforementioned. As a matter of fact in the year of the so called "Bosman" ruling professional clubs in the Community already employed a considerable number of players from other Member States and non-member countries (8) and the number even increased until nowadays.

The International Federation of Association Football (FIFA) fears the competitive balance of sports at the level of national and international competition could be weakened without a quota system and the sporting and financial concentration could even increase affecting the promotion of junior players and the quality and substance of the national teams. (9)

FIFA's latest attempt to address these issues is the "6+5" Rule mentioned above. (10) According to this rule, a football club is obliged to begin a game with at least six players entitled to play for the national team of the country where the club is located. (11) The teams are entitled to substitute three additional players against foreign ones during the match, so that the balance might be "3+8" in the end. Furthermore there are no restrictions for a club in concluding contracts with foreign players.

FIFA originally intended to introduce the "6+5" Rule until the 2012/2013 season beginning with a "4+7" Rule in the 2010/2011 season, in order to grant a reasonable amount of time to the clubs to adapt their squads. (12)

In the meantime the European Parliament (13) voted for a rejection of the "6+5" Rule and the European Commission (14) recognized a breach of Art. 45 TFEU (15).

At present the aforementioned rule has not been effected and according to a study from September 2010 the 60th FIFA Congress meeting in Johannesburg in June 2010 decided to withdraw the "6+5" Rule. (16)

Nevertheless FIFA's President Mr. Blatter is continuing to defend "his Rule" (17) by seeking further political support for this project.

II. Legal admissibility of the Rule

In the following the legal admissibility of the "6+5" Rule will be considered in detail. Therefore an analysis of its compatibility with Art. 45 TFEU and with Art. 101, 102 TFEU is required.

1. Breach of freedom of movement for Personas

Economic integration of the Member States is a primary aim of the Union (Art. 3 TEU (18)) and therefore the Treaty provides the abolishment of all obstacles to the basic freedoms within the Community (Art. 3 para.1 b), Art. 4 para.2 b), Art. 26 TFEU).

In addition the fundamental freedoms are no longer considered as the sole prohibitions of discrimination but were developed by the ECJ as liberty rights. (19) Thus the scope of Art. 18 TFEU is subsidiary. This understanding of fundamental freedoms as liberty rights is necessary to achieve a more extensive access to national markets and required by the "effet utile". (20) The ECJ stated to abolish all disadvantages for cross-border economic activity. (21)

a) Scope of protection

Furthermore it has to be considered, if regulations of Sports Associations are included within the scope of Art. 45 TFEU.

(1) Subject matter of protection

With reference to the Rule there is no exhaustive secondary law, which leads to the relevance of Art. 45 TFEU. Regarding the applicability of this provision a cross border element is required. (22) The existence of such element shall be assumed hereinafter.

For determination of the subject matter as well as of the personal scope of protection of Art. 45 TFEU the concept of worker has to be considered as of central significance. (23) Economic activities in terms of Art. 3 TEU solely are within the scope of Art. 45 TFEU. (24) Professional football players undoubtedly are part of economic life. (25) The scope of freedom of movement may even be applicable to players without citizenship of any Member State but them being citizens of any third country bounded under a association agreement with the European Community. (26) So the question, if the rule is concerning economic or purely sporting activities, has to be answered.

(2) Exception to the scope - purely sporting activities

The ECJ formerly appeared as generous and explained that the provisions of the Treaty do not affect rules concerning questions which are of purely sporting interest and, as such, have nothing to do with economic activity. (27) Thus it developed an exception to the scope of Art. 45 TFEU. Whenever matches are purely of sporting rather than of economic nature, such as competitions between national teams, the basic freedoms are not affected. (28)

According to some opinions participating at the start of a game shall not be considered as the central issue of the occupational activities protected by the right to freedom of movement and, hence, is not subject to Art. 45 TFEU. The occupational activities of the individual player is not affected in his capacity as employee of the club. (29)

It should be noted that this opinion does not conform to the recent "Meca-Medina" (30) ruling. The ECJ took another important decision with regards to the relation between sport and Community law: even if a rule concerns questions purely of a sporting nature and, as such, has nothing to do with an economic activity per se, this does not mean that the activity governed by that rule or the body which lays it down are not governed by the Treaty. (31)

The ECJ voted for a broad approach. If a sporting activity falls with-in the scope of the Treaty, there should no exceptions per se be applicable. Thus the "6+5" Rule can be subject to all obligations resulting from Treaty provisions and should be analysed from the perspective of a restriction to fundamental freedoms. (32)

Therefore FIFA is entitled to introduce discriminatory rules (33) based upon the autonomy granted to sport associations by Art. 11 European Convention on Human Rights. (34) Since the "Meca-Medina" ruling even purely sporting rules must be proportional. (35) Assuming the rule is according to basic rights it nevertheless has to be examined with reference to any justification.

Furthermore the Lisbon Treaty Art. 165 TFEU was extended to cover the European dimension in sports. (36)

In its "Bernard" (37) ruling the ECJ displays considerable willingness to consider the social and cultural value of sport and the particular circumstances under which sport operates, albeit without extending sport an exception in the strict sense. For the first time the Court refers to the new Art. 165 TFEU and made a point of the fact that the Member States have recognized the special character of sports in the Treaties. (38)

The responsibility of the European Union under Art. 165 TFEU paying attention to the distinctiveness of sport, however, should not be overstated. Quite the contrary, Art. 165 TFEU may not serve as a basis for a sweeping and comprehensive exception to the scope of Art. 45 TFEU demanding sports. (39) Factual activities according to Art. 165 TFEU will be by far of political nature. (40)

The aforementioned leads to the conclusion that the "6+5" Rule is within the scope of Art. 45 TFEU.

b) Interference with the fundamental freedoms

As mentioned above the "6+5" Rule will be introduced by Sports Associations. Therefore it has to be considered, if Art. 45 TFEU solely addresses to Member States or is effecting third-parties.

(1) Sports Associations: an entity bound by Art. 45 TFEU

The ECJ has extended applicability of the scope of Art. 45 TFEU at least partially to horizontal constellations, e.g. in case of involvement of private parties in any claims. (41) Moreover the ECJ has clarified that rules established by sporting associations and federations, both on national and on international level, are subject to Community law. (42) Such rulings clarified that sport clubs, associations or federations have to consider the non-discrimination principle when approving their internal codes and regulations. (43)

In this coherence should be noted, that the ECJ extended the third-party effect in its "Angonese" (44) ruling even too far. The autonomy of private persons requires more attention and the approach of the Court must be considered as too restrictive. (45) A private banking corporation is not equipped with an equal position of power compared to a sporting association or federation of earlier rulings. (46)

(2) Existence of "discrimination"

Art. 45 TFEU obviously prohibits direct discrimination (47) on grounds of nationality. (48) The ECJ confirmed that Art. 45 TFEU does not only apply to discriminatory rules but also to rules which, although they are expressed to apply without distinction (Indirect or covert discrimination) (49), impede the exercise of the free movement rights. (50) Furthermore such rules constituting an obstacle prohibited under Art. 45 TFEU, the provisions must affect the access of workers to the labour market. (51)

Nevertheless the ECJ decided that player quotas impair the freedom of movement due to the participation in games being a main goal of professional players. (52) In a press release from May 28th 2008, the Commission has disclosed its legal conception, holding directly discriminatory rules such as the "6+5" Rule as incompatible with European law. (53)

Against a direct discrimination can be argued that clubs would still be enabled to recruit players not eligible for the national team of the according club's country. Therefore the "6+5" Rule can only be regarded as indirect restriction with regard to the player"s work since being only applicable to the starting line-up. (54)

Advocate General Lenz countered this argument appropriate in his "Bosman" opinion by noting that the Commission correctly referred to Article 4 para. 1 of Regulation (EEC) No 1612/68 (55) on freedom of movement for workers within the Community. The Regulation provides that provisions laid down by law, regulation or administrative action of the Member States which restrict by number or percentage the employment of foreign workers are not to apply to nationals of other Member States. (56) The "6+5" Rule, under which only the number of foreign players who can play in the starting line-up is limited, but not the number of players a club can engage, is still in breach of Art. 45 TFEU.

Besides for factual and economic reasons clubs would not engage many more foreign players than are allowed in the starting line-up. (57)

c) Justification of the interference

Currently it needs to be clarified, if a direct discrimination can only be justified by one of the cases as listed in Art. 45 para. 3 and 4 TFEU (58) or whether reasons of common good can be consulted in addition. (59)

According to the first opinion singly Art. 45 para. 3 TFEU seems to be applicable. (60) The provision provides a derogation to the freedom of movement. On that basis solely limitations on grounds of public policy, public security or public health can be justified. In this respect, as mentioned above, the sporting associations have an organizational autonomy to establish and observe the institution of sports (see also Art. 165 TFEU). (61)

The circumstance that football is existing without the "6+5" Rule until today already proves the non-existence of pressing reasons of public interest. A justification based on the "Ordre-Public" Exception therefore is not applicable.

In accordance with the second opinion exist persuasive arguments that direct discriminations can be justified by reasons of common good. (62) As already considered above in general, purely sporting rules are with-in the scope of Art. 45 TFEU.

According to the ECJ ruling in the "Bosman" case it seems to be suitable to prove possible reasons of common good within justification. (63) Since these reasons have to be proportional, the aims of the "6+5" Rule need to be eligible, necessary and adequate. (64)

(1) Protection of the national identity of football and the national teams The argument is brought forward that the reduced participation of national football players in national football clubs generally leads to a reduction in the level of national teams. (65) This point is unpersuasive since recently Mesut Ozil and Sami Khedira, two key players in Germany s national team signed a contract with Real Madrid and this so far shows no evident negative effect on the national team. Only an additional employment abroad can be proven which by the way could have positive effect on the player"s development. (66)

Thus can be ascertained that the "6+5" Rule is not eligible to protect or even improve the quality of national teams.

Furthermore it is argued that the conservation of a national identity and cultural diversity justifies the introduction of quota systems. (67) Against this can be argued, that the participation in international competitions is limited due to competitive game results, without any identifiable effect caused by the nationalities of signed players. (68) Nor does the participation of foreign players prevent a team's supporters from identifying with the team. (69) Quite on the contrary, those players rather do attract the admiration and affection of football fans. (70)

Besides for a breach to the freedom of movement the argument of national identity would not be adequate since it cannot be based on Art. 45 para. 3 TFEU. (71)

(2) Promotion of junior players

It is argued that the promotion of national junior players is necessary, because most junior players come from South America and Africa, and secondly, European clubs favour older, experienced European football players. (72) Young domestic players do not get a chance to gain practical experience. Regarding economical aspects it is cheaper than training and developing own junior players by taking a financial investment with incalculable outcome. (73)

In general this aim can be also found in the European Sports Charter (74). In its Article 1 the Charter declares, that all young people should have the opportunity to receive physical education instruction and the opportunity to acquire sports skills. European bodies as the ECJ, the European Counsel, Commission and Parliament have explicitly acknowledged the training and development of young players as legitimate goals in sports. (75)

In the year 2005 the UEFA introduced a so called "home-grown players" Rule. (76) Clubs are obliged to employ locally trained players which must have spent at least 3 years between the ages of 15 and 21 in their club or in another club of the same country. Thus there is no nationality condition. (77) The idea is to promote training of young players and to encourage clubs to invest in training of young people and not only in transfers of players. (78)

Hence the "6+5" Rule would not be necessary to promote junior players. The argument that the "home-grown players" Rule leads to early recruitment of underage players from abroad is not convincing. (79)

Extraordinary young football talents have been scouted worldwide even before the "home-grown players" Rule was introduced. Accordingly Advocate General Lenz argues that the employment of foreign players does not cause any particular disadvantages. (80)

Furthermore it is argued that the "home-grown players" Rule does not help to promote junior players with the nationality of the country the club is located in. (81) As already mentioned above a connection between game experience and the national level could not be proven.

(3) Improving competition in sport

Finally the "6+5" Rule is regarded as eligible to install competitive balance between the teams. (82) But as a matter of fact, the richest clubs are always able to afford the best and most expensive players. At the same time, they are able to employ the best native players and therefore quota systems would not change this. (83)

This leads to the conclusion that the most successful clubs shall remain successful. Their financial potential, their name and historical fame attracts the best talents and gives an advance compared to smaller clubs which lies in the nature of things. (84)

Therefore the "6+5" Rule shall not lead to any improvement of competition. (85)

d) Conclusion

The aforementioned leads to the conclusion that the "6+5" Rule must be regarded as a breach of freedom of movement and the aims of that rule have no sufficient weight to sustain justification.

2. Breach of European competition law (Art. 101, 102 TFEU)

In order to examine the legal admissibility of the "6+5" Rule European competition law needs comprehensively to be considered.

The aim of EU competition law is to prevent restrictive trade practices that are likely to interfere with trade between Member States or lead to a distortion of competition in the Union. According to the Treaty of Lisbon this aim is now laid down in the Protocol (Nr. 31) "on the internal market and competition" as said there that the internal market as set out in Article 2 of the Treaty on European Union includes a system ensuring that competition is not distorted. (86)

a) Violation of Art. 101 TFEU

(1) Applicability / exceptions for the segment

As shown above even rules concerning purely sporting activities are ruled by the Treaty. This means that sporting regulations are no longer automatically excluded from the scope of competition law but are tested for compatibility with competition law. (87)

(2) Coordination of behaviour between companies or trade associations In addition, FIFA needs to be regarded as an "undertaking" under the terms of Art. 101 TFEU. The TFEU does not define the concept of an "undertaking" for the purposes of the competition rules. The ECJ stated that the term "undertaking" encompasses every entity engaged in an economic activity, regardless of the legal status of the entity and the way with it is financed. (88)

Members of FIFA are the national associations (89) and hereby in the end the football clubs which are entities with economic aims. (90) The clubs are for example selling media rights, tickets or are active on the transfer market for players. (91) Consequently, the "6+5" Rule must be regarded as an agreement between undertakings.

(3) Restriction to competition

The competition concerned is the competition between the clubs, in particular the one for new players. The relevant market could be the market of professional players. (92) It is argued that the competition neither regards supply nor demand. The players supply as service providers and the clubs are regarded as customers. (93) This idea disregards that clubs often receive transfer money and therefore have own economic interests to offer players to the relevant market. The rule in question not only restricts the clubs in completing their squads, thus in engaging new players, as well as it restricts the possibility to offer players which actually are employed.

(4) Hindering international trade

Considering the hindering effect of the "6+5" Rule on trade between Member States the ECJ requires a agreement "capable of constituting a threat to freedom of trade between Member States in a manner which might harm the attainment of the objectives of a single market between the Member States". (94) The adverse effect must also be appreciable. (95)

In that regard, the ECJ has consistently stated that it must be possible to foresee with a sufficient degree of probability on the basis of a set of objective factors of law or fact that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States. (96)

The "6+5" Rule will influence the player transfer between the Member States with high probability. Against it is argued that players are employees and the trade concept does not cover the employment of workers by clubs across national borders. (97) In line with the ECJ ruling it can be said against it that the concept of trade has a wide scope. (98) Professional players are therefore an economic good which is traded. (99)

(5) Appreciability (the "de minimis rule")

There must be a possibility of an appreciable amount of inter Community trade being affected, as Art. 101 para. 1 TFEU is subject to the "de minimis rule". If the market share held by each of the parties to the agreement does exceed 15 % the agreement is noticeable. (100) The "6+5" Rule will affect a market share of 100 % because every club will be legally bound. FIFA de facto holds a monopoly. (101) The argument, that the "de minimis rule" is not appreciable because the "6+5" Rule does not attend the aim to weaken competitors is not convincing. (102) As shown above the rule does not solely concern sporting matters.

(6) Justification

There is a dispute if only an exemption in accordance with Art. 101 para. 3 TFEU is possible, or if there are additional exemptions constraining the scope of Art. 101 TFEU (the so called "rule of reason approach"). (103) To the point the Court s jurisprudence appears as implicit limitation and not as a "rule of reason approach". (104)

So the "6+5" Rule can gain a legal exemption (105) under Art. 101 para. 3 TFEU if it satisfies the conditions given hereby. Generally speaking, the reason for such exemptions is the cognizance that certain agreements may have positive effect on competition that outweigh any possible detrimental effect on trade. (106)

As shown above the supposed positive aims for the Rule could not justify a limitation of the basic freedom. In context of unfair competition an additional argument states that professional sport clubs rely on each other s existence, because sporting events can only be successfully commercially exploited, if certain sportive balance between the clubs remains. (107) On the other hand the "6+5" Rule is not neutral in the manner that it has no effect on the normal functioning of competition at all. (108)

And even more important the sporting balance between the clubs will not be improved by the "6+5" Rule.

As intermediate result a violation of Art. 101 TFEU is recognizable.

b) Violation of Art. 102 TFEU

With regard to competition law it must be considered, if FIFA abuses a dominant market position by implementing the "6+5" Rule.

Generally speaking, Art. 102 TFEU seeks to prevent undertakings from becoming involved in anti-competitive behavior. (109)

(1) Dominant Position

The relevant market is the player market, as shown above. FIFA itself is only involved by installing the rules. Therefore a dominant position within Art. 102 TFEU can only be hold by the clubs bounded as a collective entity. (110)

For such a position three cumulative conditions must be fulfilled: The clubs must have mutual knowledge of behavior, the rule must have constancy and there has to be an absence of foreseeable adverse effects. (111) The aforementioned conditions are fulfilled.

The "6+5" Rule affects all football clubs worldwide. Thus every single club on the relevant market will be concerned.

(2) Abuse

According to General Attorney Lenz there is no abuse given since the rule only restricts competition between the clubs and not between the clubs and the players. (112)

This argument must be regarded as unpersuasive as the players themselves are suppliers to the relevant market. The "6+5" Rule brings a barrier to market access (113) for the players. Secondly the rule also will bring a quantitative restriction on the competition between the clubs. (114)

In accordance with the "Meca-Medina" (115) ruling the "6+5" Rule would be no abuse if the legitimate objectives are proportionate.

As shown above no legitimate aims for the rule are existing.

c) Conclusion

The aforementioned leads to the conclusion that also a violation of Art. 102 TFEU is recognizable.

3. Possible legal proceedings against the "6+5" Rule

Finally the question occurs, how an implementation of the rule could be handled on a legal basis respectively what legal procedures can be undertaken.

In the past rules on foreign players already have been in force without leading to court proceedings against them. (116) The involved sporting clubs will often abide a rule voluntarily.

Also as the "Bosman" case shows players can file a lawsuit. In addition the EU Competition Commission can take measures under Art. 105 TFEU and FIFA will be required to desist the exercise of the "6+5" Rule and a substantial fine can be imposed.

III. Summary and Results

A consolidated view of the aforementioned indicates that the "6+5" Rule violates Community Law. Nevertheless, it has to be admitted that the "6+5" Rule was meant to support eligible aims.

Since the "home-grown player" Rule is with good reasons deemed insufficient to achieve a promotion of national junior players, the delevopment of alternative instruments is required.

One possible concept suggested is to introduce a "promotion tax" (117) for young players. According to this concept, football clubs are obliged to field a minimum number of domestic young players or will have to pay a so called "promotion tax" for every missing player to a young player promotion fund.

An alternative model votes for the possibility to introduce a kind of "bonus-system". Every time a club fields domestic young players, this will be rewarded by a certain "bonus-payment". (118)

Nevertheless both concepts anyway could lead to an indirect discrimination of foreign players. Although under certain conditions such discrimination can be justified, the aim should be to avoid any unnecessary discrimination. Therefore, to support FIFA s "6+5" aims an admissible option can be a moderate "promotion tax" combined with "bonuses" by equal extend.

In accordance with the "Meca-Medina" (119) ruling a such a moderate "promotion tax and bonus" system could be considered as proportional. Hence it would cause no breach to European law especially the freedom of movement and European competition law.

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* Paper within the Master of Laws Program, Open University, Hagen, Germany, Winter term 2010/2011.

(1.) FC Chelsea London, Real Madrid, FC Barcelona.

(2.) Frick, SJPE 2007, page 422.

(3.) Battis in INEA 2008, page 27 et seq..

(4.) Case 13/76, Dona, Judgment of the Court, ECR [1976] Page 1333.

(5.) Case C-415/93, Bosman, Judgment of the Court, ECR [1995] Page I-4921.

(6.) Case C-265/03, Simutenkov, Judgment of the Court, ECR [2005] Page I-2579.

(7.) See Articles 17 para. 8 to 12 of Union of European Football Associations (UEFA) Regulations for the Champions League and the UEFA Cup.

(8.) Case C-415/93, Bosman, Opinion of Mr Advocate General Lenz, ECR [1995] Page I-4921, ref. 57.

(9.) INEA 2008, page 185.

(10.) Lynam, FIFA's "6+5 Rule", page 1: The Rule appeared first four years ago in the Memorandum of Understanding between FIFA and FIFPro dated 2 November 2006. Later on 30 May 2008 FIFA's Congress passed a overwhelmingly accepted resolution to fully support the objectives of the "6+5" Rule.

(11.) Battis in INEA 2008, page 18; Apps, SJ 2008, page 18.

(12.) Kusch, ISLJ 2010, page 114.

(13.) European Parliament, Legislative Observatory, INI/2007/2261, 08/05/2008 - EP: non-legislative resolution.

(14.) Press release, European Commission, UEFA rule on "home-grown players: compatibility with the principle of free movement of persons, RAPID, 28 May 2008, IP/08/807.

(15.) Official Journal of the European Union, 30 March 2010, 2010/C 83/01.

(16.) Parrish/Garcia/Miettinen/Siekmann, The Lisbon Treaty and EU Sports, page 32.

(17.) See: http://www.fifa.com/aboutfifa/cultural/news/newsid=1316570.html: FIFA in Paris for Africa (FIFA.com) 12 October 2010: '6+5', protecting minors and the Transfer Matching System; www.fifa.com/aboutfifa/federation/president/news/newsid=1281244.html: Blatter congratulates new Hungarian President (FIFA.com) 4 August 2010: Schmitt accepted the role of '6+5 ambassador' to the European Parliament in order to promote and defend the rule; http://www.fifa.com/worldcup/news/newsid=1233802/: Blatter: My mission is not over (FIFA.com) 10 June 2010: we also spoke about 6+5; http://www.fifa.com/newscentre/news/newsid=1187396.html: Rama Yade: France will be up to the task (FIFA.com) 30 March 2010: Rama Yade assured President Blatter of her support for the 6+5 rule; http://www.fifa.com/aboutfifa/federation/releases/newsid=1161813.html: Spanish President meets FIFA President in Madrid (FIFA.com) 25 January 2010: In connection with the Spanish presidency of the European Union in the first half of 2010, Rodriguez Zapatero and Blatter discussed the best way of implementing the proposals made by the FIFA Congress with a view to protecting national teams, safeguarding the education and training of young players and training clubs, preserving the values of commitment and motivation in football and maintaining the national identity of clubs (6+5).

(18.) Official Journal of the European Union, 30 March 2010, 2010/C 83/01.

(19.) Ehlers in Ehlers, EuGR, para. 7 / ref. 28 et seq.; Brechmann in Calliess/Ruffert, EUV/EGV, Art. 39 EGV / ref. 52.

(20.) Streinz, Europarecht, para. 12 / ref. 672; Haratsch/Koenig/Pechstein, Europarecht, Chapter IV / ref. 878 cons., ref. 785 et seq. diff. view: only indiscriminate measures demand the understanding of fundamental freedoms as liberty rights.

(21.) Case C-415/93, Bosman, Judgment of the Court, ECR [1995] Page I-4921 ref 94.

(22.) Scheuer/Weerth in Lenz, EU-Vertrage, Art. 45 AEUV / ref. 4.

(23.) Becker in Ehlers, EuGR, para. 9 / ref. 4 et seq..

(24.) Randelzhofer/Forsthoff in Grabitz/Hilf, Das Recht der EU, Art. 39 EGV / ref. 22 et seq..

(25.) Randelzhofer/Forsthoff in Grabitz/Hilf, Das Recht der EU, Art. 39 EGV / ref. 28; diff. view: Haratsch/Koenig/Pechstein, Europarecht, Chapter IV / ref. 856.

(26.) Streinz, SpuRt 2008, page 226; Conzelmann, ISLJ 2008, page 28.

(27.) Case 36-74, Walrave and Koch, Judgment of the Court, ECR [1974] Page 1405 ref. 8; Case 13/76, Dona, Judgment of the Court, ECR [1976] Page 1333 ref. 14.

(28.) Majani, ISLJ 2009, page 22.

(29.) Fleiner in INEA 2008, page 119.

(30.) Case C-519/04 P, Meca-Medina, Judgment of the Court, ECR [2006] Page I-6991.

(31.) Case C-519/04 P, Meca-Medina, Judgment of the Court, ECR [2006] Page I-6991 ref. 25 et seq.; White Paper on Sport, COM(2007) 391 final, page 115.

(32.) White Paper on Sport, COM(2007) 391 final, page 102.

(33.) Conzelmann, ISLJ 2008, page 28.

(34.) likewise Art. 12 Charter of Fundamental Rights of the European Union which according to Art. 6 para.1.1 TEU is now recognized by the Treaty of Lisbon; e.g.: Streinz in Streinz, Der Vertrag von Lissabon, page 118 et seq..

(35.) Heermann, causa sport 3/2006, page 357.

(36.) Union action shall be aimed at developing the European dimension in sport, by promoting fairness and openness in sporting competitions and cooperation between bodies responsible for sports, and by protecting the physical and moral integrity of sportsmen and sportswomen, especially the youngest sportsmen and sportswomen, e.g. Brost, SpuRt 2010, page 180 et seq..

(37.) Case C-325/08, Bernard, Judgment of the Court, ECR [2010] Page 0.

(38.) Lindholm, CMLRev, page 1195.

(39.) Muresan, causa sport 2010, page 102.

(40.) Muresan, causa sport 2010, page 104.

(41.) Haratsch/Koenig/Pechstein, Europarecht, Chapter IV / ref. 781, 870.

(42.) Apps, SJ 2008, page 20; White Paper on Sport, COM(2007) 391 final, page 115.

(43.) Kahn in Geiger/Kahn/Kotzur, EUV/AEUV, Art. 45 AEUV /. ref. 18.

(44.) Case C-281/98, Angonese, Judgment of the Court, ECR [2000] Page I-4139.

(45.) Streinz, Europarecht, para. 12 / ref.707; diff. view: Brechmann in Calliess/Ruffert, EUV/EGV, Art. 39 EGV / ref. 55 et seq..

(46.) Franck in Tietje, Beitrage zum Volker-und Europarecht, Heft 1, 2009, page 12.

(47.) See e.g.: Kahn in Geiger/Kahn/Kotzur, EUV/AEUV, Art. 18 AEUV /. ref. 8: Direct or overt discrimination occurs when the national and the non-national are treated differently in law.

(48.) Brechmann in Calliess/Ruffert, EUV/EGV, Art. 39 EGV / ref. 50.

(49.) See e.g.: Kahn in Geiger/Kahn/Kotzur, EUV/AEUV, Art. 18 AEUV /. ref. 9: Indirect or covert discrimination occurs when an apparently neutral rule affects non-nationals more heavily than nationals.

(50.) Kahn in Geiger/Kahn/Kotzur, EUV/AEUV, Art. 45 AEUV / ref. 17.

(51.) Scheuer/Weerth in Lenz, EU-Vertrage, Art. 45 AEUV / ref. 4.

(52.) Case C-415/93, Bosman, Judgment of the Court, ECR [1995] Page I-4921 ref 120.

(53.) See n. 14.

(54.) Fleiner in INEA 2008, page 103.

(55.) See Haratsch/Koenig/Pechstein, Europarecht, Chapter IV / ref. 874.

(56.) Case C-415/93, Bosman, Opinion of Mr Advocate General Lenz, ECR [1995] Page I-4921, ref. 135.

(57.) Conzelmann, ISLJ 2008, page 28.

(58.) Wolker/Grill in Groeben/Schwarze, Kommentar zum EU-/EG-Vertrag, Art. 39 EGV / ref. 153.

(59.) Scheuer/Weerth in Lenz, EU-Vertrage, Art. 45 AEUV / ref. 41; Conzelmann, ISLJ 2008, page 29 et seq..

(60.) Randelzhofer/Forsthoff in Grabitz/Hilf, Das Recht der EU, Art. 39 EGV / ref. 211.

(61.) Brost, SpuRt 2010, page 180.

(62.) Jarass, EuR 2000, page 719; Haratsch/Koenig/Pechstein, Europarecht, Chapter IV / ref. 890, 895.

(63.) WeiB, EuZW 1999, page. 497; Randelzhofer/Forsthoff in Grabitz/Hilf, Das Recht der EU, Art. 39 EGV / ref. 30.

(64.) Haratsch/Koenig/Pechstein, Europarecht, Chapter IV / ref. 789.

(65.) Tsatsos in INEA 2008, page 75.

(66.) Streinz, SpuRt 2008, page 227.

(67.) Conzelmann, ISLJ 2008, page 28.

(68.) Case C-415/93, Bosman, Judgment of the Court, ECR [1995] Page I-4921 ref 132.

(69.) Streinz, SpuRt 2008, page 227.

(70.) Case C-415/93, Bosman, Opinion of Mr Advocate General Lenz, ECR [1995] Page I-4921, ref. 143.

(71.) Case C-415/93, Bosman, Opinion of Mr Advocate General Lenz, ECR [1995] Page I-4921, ref. 142.

(72.) Majani, ISLJ 2009, page 19; Tsatsos in INEA 2008 page 72.

(73.) Conzelmann, ISLJ 2008, page 26.

(74.) Battis/Ingold/Kuhnert, EuR 2010, page 7.

(75.) Kusch, ISLJ 2010, page 115.

(76.) See n. 7; Streinz in FS Steiner, page 858.

(77.) Streinz in FS Steiner, page 859.

(78.) White Paper on Sport, COM(2007) 391 final, page 13.

(79.) Battis in INEA 2008, page 146; Battis/Ingold/Kuhnert, EuR 2010, page 17.

(80.) Case C-415/93, Bosman, Opinion of Mr Advocate General Lenz, ECR [1995] Page I-4921, ref. 146.

(81.) Battis in INEA 2008, page 146 et seq..

(82.) Tsatsos in INEA 2008, page 71; Battis/Ingold/Kuhnert, EuR 2010, page 15 et seq..

(83.) Case C-415/93, Bosman, Opinion of Mr Advocate General Lenz, ECR [1995] Page I-4921, ref. 147.

(84.) Majani, ISLJ 2009, page 24.

(85.) Streinz, SpuRt 2008, page 227.

(86.) Streinz in Streinz, Der Vertrag von Lissabon, page 83.

(87.) Case C-519/04 P, Meca-Medina, Judgment of the Court, ECR [2006] Page I-6991.

(88.) Hoppe/Frohn, causa sport 2008, page 256; Case C-41/90, Hofner and Elser, Judgment of the Court, ECR [1991] Page I-1979 ref. 21.

(89.) Case C-415/93, Bosman, Opinion of Mr Advocate General Lenz, ECR [1995] Page I-4921, ref. 256: There is likewise no doubt that the individual football associations are to be regarded as associations of undertakings within the meaning of Article 85.

(90.) Schwarze/Hetzel, EuR 2005, page 589.

(91.) Manville, ISLJ 2009, page 26.

(92.) Battis in INEA 2008, page 163.

(93.) Battis in INEA 2008, page 165.

(94.) Case 22/78, Hugin v Commission, Judgment of the Court, ECR [1979] Page 1869 ref.17.

(95.) See e.g.: Case 28/77, Tepea v Commission, Judgment of the Court, ECR [1978] Page 1391 ref. 46 and 47.

(96.) Joined cases C-215/96 and C-216/96, Bagnasco, Judgment of the Court, ECR [1999] Page I-0135 ref. 47.

(97.) Battis in INEA 2008, page 170.

(98.) Case 172/80, Zuchner, Judgment of the Court, ECR [1981] Page 2021 ref. 18.

(99.) Manville, ISLJ 2009, page 28.

(100.) Official Journal of the European Union, 22 December 2001, 2001/C 368/07.

(101.) Conzelmann, ISLJ 2008, page 29.

(102.) Conzelmann, ISLJ 2008, page 29.

(103.) Emmerich in Immenga/Mestmacker, Wettbewerbsrecht, Art. 81 para.1 / ref. 246 et seq..

(104.) WeiB in Calliess/Ruffert, EUV/EGV, Art. 81 EGV / ref. 114; diff. view: Haratsch/Koenig/Pechstein, Europarecht, Chapter III / ref. 1054f.

(105.) Official Journal of the European Communities, 4 January 2003, Council Regulation (EC) No. 1/2003, L 1/1.

(106.) Ellger in Immenga/Mestmacker, Wettbewerbsrecht, Art. 81 para. 3 EGV / ref.3 et seq..

(107.) Conzelmann, ISLJ 2008, page 28.

(108.) Manville, ISLJ 2009, page 28.

(109.) Haratsch/Koenig/Pechstein, Europarecht, Chapter III / ref. 1092.

(110.) White Paper on Sport, COM(2007) 391 final, page 68; Manville, ISLJ 2009, page 33; Haratsch/Koenig/Pechstein, Europarecht, Chapter III / ref. 1101.

(111.) Case T-193/02, Piau v Commission, Judgment of the Court, ECR [2005] Page II-0209 ref. 111.

(112.) Case C-415/93, Bosman, Opinion of Mr Advocate General Lenz, ECR [1995] Page I-4921, ref. 265.

(113.) Mestmacker/Schweitzer, Europaisches Wettbewerbsrecht, para. 16 / ref. 33.

(114.) Manville, ISLJ 2009, page 34.

(115.) Case C-519/04 P, Meca-Medina, Judgment of the Court, ECR [2006] Page I-6991.

(116.) Case C-415/93, Bosman, Opinion of Mr Advocate General Lenz, ECR [1995] Page I-4921, ref. 113: In one case, in Germany (spring 1995) 1. FC Nurnberg, threatened with relegation, were at home to SV Meppen in a German second division match. A few minutes before the end Nurnberg, who were leading 2-0, by mistake brought on as substitute a fourth foreigner, who had Austrian nationality. Because of that infringement, the DFB awarded the match, which had ended 2-0 to Nurnberg, to SV Meppen by two goals to nil and two points to nil. Nurnberg accepted the deduction of the points.

(117.) Conzelmann, ISLJ 2008, page 27.

(118.) Hoppe/Frohn, causa sport 2008, page 258.

(119.) Case C-519/04 P, Meca-Medina, Judgment of the Court, ECR [2006] Page I-6991.