Third-party ownership prohibition in football and European Union fundamental freedoms: CAS decision on RFC Seraing case

Abstract

Third-party ownership used to be an important financing mechanism in football. It allowed some clubs to be more competitive in the global transfer market, as they could attract and retain footballers whom they would otherwise not have been able to attract if the clubs had to acquire the totality of the players’ economic rights. However, this mechanism was banned by FIFA in 2015 after the inclusion of Article 18ter in its Regulations on the Status and Transfer of Players. This prohibition has been very controversial and was challenged before the CAS by the Belgian club RFC Seraing. The decision in the case considered the parties’ arguments: The club’s argument was that Article 18ter violated European Union law, including the fundamental freedoms; FIFA’s argument was that such a measure was necessary and proportionate to preserve the integrity of football. Throughout this paper, the reasoning adopted by the CAS panel in its decision will be analysed, taking into consideration the allegations regarding the legitimacy of FIFA’s objectives in banning TPO as well as the adequacy and proportionality of such a measure to achieve those objectives. Therefore, it will be possible to verify whether the TPO prohibition is truly compatible with the European Union’s fundamental freedoms.