By Mark Baber
August 28 – Players who cancel their contracts and move to a new club are frequently being caught up paperwork that prevents them actually playing for their new club while they wait for an International Transfer Certificate (ITC) to be issued. Delays can be long as national association refuse to deliver the ITC on the instructions of the former club, creating difficulties in registering the player with his new club and thus impeding his right to play.
In an article in Law in Sport, sports solicitor and member of the http://www.sports-law.eu team Josep F. Vandellós Alamilla examines the problem with reference to the free movement of workers within the EU.
FIFA decisions over the main conflict in cases like this, between the player and his former club, can take several years to be decided, leaving the player little option other than to either take action against the new club for failing to register him, or just moving on to another club willing to take the risk and register the player according the special provisional registration procedure.
The questions Alamilla addresses are whether the refusal to issue an ITC constitutes and obstacle to the legal free movement of workers within the EU and whether a club can be justified in raising this impediment.
Referring to the FIFA regulations on the transfer of players and previous case law including the Bosman case, the Olympique Lyonnnais v Olivier Bernard and Newcastle United case, Alamilla argues that the rejection of the ITC constitutes “a fundamental and direct restriction to the freedom of movement for workers, since the player is prevented from playing with his new club unless the latter obtains the ITC allowing the registration of the player.”
According to Alamilla: “The FIFA RSTP imposes a positive obligation on the former association to reject the ITC when a contractual dispute is pending and therefore, the impediment it generates is certain. Moreover the refusal of the ITC has direct impact on the players’ right to work/play since it can’t be registered with the new club.”
Regarding whether this restriction can be justified, this can only be the case if the obstacle pursues a legitimate aim and is justified by reasons of public interest and proportionate to the aim pursued.
FIFA’s Transfer Match System (TMS) is intended, according to FIFA, to harness “modern electronic technology with the aim of making international transfers more transparent and protecting minors”. Obviously this is a legitimate objective, but according to Alamilla “it does not entirely justify the right of an association to block the player from continuing his career after his contract is terminated.”
In conclusion, Alamilla says the goal of transparency could be attained without limiting the freedom of movement of players and this could (and should) be achieved by amending FIFA’s rules to “make the delivery of the ITC mandatory under any circumstance while keeping the obligation to inform of the existence of a dispute between the player and the former club, so that the new club can freely decide whether to hire the player while assuming the consequences of a possible bad outcome of the conflict between the player and his former club.”
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