Financial Fair Play, the English Language and Legal Standing

At Capital.de Stefan Szymanski has a delightful essay on the offense to the English language that is UEFA's Financial Fair Play. Stefan has kindly posted up the original English version at Soccernomics. Here is an excerpt:

Whenever Financial Fair Play is mentioned the names of Roman Abramovitch and Sheikh Mansour are quoted- what they are doing to football, it is alleged, is unfair. Yet in reality they are convenient scapegoats for a political deal that UEFA has stitched up between football’s rich and poor.

The economic reality is that most clubs do not have a sugar daddy and a very large fraction are insolvent. According to UEFA 55% of clubs in Europe’s top divisions reported a net loss in 2011, 38% of clubs reported negative net equity, and 16% of club accounts reviewed contained a qualification expressed by the auditors as to financial viability of the company. This does not make UEFA look like a good housekeeper, so they want to impose tighter regulations. However, since almost all of the insolvent clubs are minnows, it might look as if they were doing the bidding of the big clubs. UEFA would not dare to restrict the freedoms of the established powers and by focusing on sugar daddies they are actually helping them by ensuring that no currently small club will ever pose a serious challenge. Voila, call it Financial Fair Play, and who could disagree?

This was Orwell’s point. The decline of English, he thought, was a political phenomenon. “Political language has to consist largely of euphemism, question-begging and sheer cloudy vagueness”, and if we allow this to go unchallenged we will indeed fall into slovenly thought. UEFA, with the support of many politicians, want us to use warm phrases emptied of their original meaning as camouflage for the pursuit of an agenda which has little to do with fair play and much to do with the exercise of power. But if we listen to Orwell, we need not be fooled. All we have to do is to ask what the words really mean.

It is safe to conclude that Szymanski is not a fan of FFP. Here is the conclusion of a recent academic that Sztmanski collaborated on with Thomas Peeters, which explored the effects of FFP on the EPL via an economic model (Vertical Restraints in Soccer: Financial Fair Play and the English Premier League, here in PDF):

[W]e find that had the Financial Fair Play regulations applied fully in the English Premier League in the 2009/10 season, wage to turnover ratioswould have fallen by as much as 15%, which is in line with the theoretical predictions of Dietl et al (2009). As such, the FFP break-even rule will in many ways resemble a North American salary cap, although the latter applies the same spending cap to all teams. In other words, our paper shows that in this context a vertical restraint may restrict competition in exactly the same way as a horizontal agreement between competing firms. Salary caps have been justified in US courts under the theory that they promote competitive balance among the teams. On top of this, they are agreed upon in a system of collective bargaining with unions representing the players, and such agreements are exempt from antitrust. The break-even rule under FFP has not been negotiated as part of a collective bargaining agreement with unions, and furthermore such agreements are not exempt from competition law in the EU. Therefore, analyzing the impact of FFP on competition in national leagues is important to assess whether it complies with EU competition law.

The rationale advanced by UEFA for its regulation is not the promotion of competitive balance, but “discipline and rationality” in club finances. Considered as a vertical restraint, this might be deemed to have pro-competitive properties if the rules help to preserve the integrity of the competition and the financial stability of the clubs. On the other hand, our results demonstrate that the break-even rule could be construed as a means to raising profitability and therefore an anti-competitive vertical restraint under EU competition law.

The Swiss Ramble recently offered a deep dive into the economics of FFP, and like Szymanski, offers a fairly negative evaluation:

While the majority of clubs are in favour of FFP’s attempts to tackle football’s economic woes, there is a concern that far from making football fairer, all this initiative will achieve is to make permanent the domination of the existing big clubs: survival of the fattest, if you will. The argument goes that those clubs that already enjoy large revenue (like Real Madrid, Barcelona, Manchester United and Bayern Munich) will continue to flourish, while any challengers will no longer be able to spend big in a bid to catch up.

However, more fundamental than the policy effectiveness of FFP is likely to be its legality under European law. The regime has already been challenged, here is The Guardian reporting:

UEFA's financial fair play regulations face a legal challenge in the European courts after a players' agent argued the rules will unfairly restrict the amount of money he can earn. Daniel Striani, an agent registered in Belgium, has lodged a formal complaint with the European commission against the rules, which require clubs in European competitions from 2011 to move towards breaking even financially.

Striani is represented by Jean Louis-Dupont, a lawyer who in 1995 successfully challenged football's contract rules on behalf of a Belgian player, Jean-Marc Bosman, a legal victory which allowed players to move for free at the end of their contracts. Dupont argues that, as in the Bosman case, he will defeat Uefa's FFP rules even though they are supported by the European Commission.

He argues that Uefa's regulations, which prevent clubs making heavy financial losses whether backed by an owner or not, will have five separate consequences he claims are anti-competitive. The first is that they will restrict investment in a club by no longer allowing them to run at a loss.

The second is the key concern being voiced particularly in England, that it will lock in the power of the already rich clubs, whose dominance will no longer be able to be broken by the odd club like Manchester City or Chelsea which has losses supported by a mega-rich owner.

He then argues that the aim of FFP to dampen down players' wage and transfer fee inflation is "anti-competitive", a breach ofEU law. This is because FFP will lead to a "reduction of the number of transfers, of the transfer amounts and of the number of players under contracts per club", and will have a "deflationary effect on the level of players' salaries".

In conclusion, Striani argues that FFP will be "anti-competitive" because it will affect his own ability to earn agents' fees from players' wages and transfer fees.

Stay tuned, more action to come at the lex sportiva frontier!