Mr. Eko

Case M-1/06 Kwame and Kofi Eko and F.C. Tomalona v FIFA, UEFA & others

1. Back in the seventies, Yaw Eko was a sprinter with an international reputation. He represented Ghana at several world championships and at the Olympic games in Montreal in 1976 in the 100m athletics. Nowadays, he lives with his family in a small village built on the banks of Lake Volta in Ghana. He goes fishing, and also owns a small piece of land, on which he grows cacao trees. Mr. Eko and his wife Abba are the proud parents of seven children, coincidentally all born on a different day of the week. Two of his sons, Kwame (º1973) and Kofi (º1981), inherited their father’s sports microbe. Just like him, they love running, but only when there is a football involved. As kids, playing around on the streets, they were both spotted by talent scouts and received proper education and football training at the Accra Football Academy.

2. Kwame, the eldest, was the first to leave his home and family and move to Europe. In the summer of 2000, he signed a five-year deal with A.C. Floriana, a team playing in the first division of San Stefano, a Member State of the European Union. A.C. Floriana is a strong team, with a good national reputation. It has won two national championships, in ’56 and ’69. It has never really excelled at the international stage, in the European Cup competitions. Strong, ruthless and courageous, Kwame quickly obtained a place in the centre of the Floriana defence. Back home, Kwame is also a regular in the selection of the national team of Ghana, ‘the Black Stars’. Beloved by his team-mates, feared and respected by his opponents, he is the captain of the national side.

3. In the summer of 2003, Kwame, whom the home fans of A.C. Floriana gently refer to as ‘Mr. Eko’ in their chants, convinced the chairman of Floriana to transfer also his younger brother Kofi from Ghana, to solve the problems of the team up front, in attack. Both parties agreed upon a contract for two years. Kofi’s arrival in Floriana did not go by unnoticed. Ilaria, the daughter of Floriana’s chairman Del Monte, fell for the charms of the young striker. Already after a couple of months, the happy couple decided to get married. Pursuant to the San Stefano nationality laws, Kofi automatically acquired the nationality of San Stefano, as the spouse of a national. Meanwhile, also Kofi’s integration into the team was to everyone’s liking. He adjusted himself easily to the tactical and defensive style of playing in San Stefano. His lightning pace, coupled with his fine positional play, proved the key to unsettle many a defence in the first division of San Stefano. All teams in San Stefano came to fear A.C. Floriana, and especially its prolific African striker, whom the national sports media admiringly called ‘the Black Panther’. In 2004, A.C. Floriana won the national cup. And one year later, in the 2004/05 season, the team performed even better. Kofi became top scorer in the competition. His goals, and the impenetrability of the Floriana defence, guided by his brother, landed A.C. Floriana on the second place in the competition, worthy of a ticket to the preliminary rounds of the European Champions League.

4. The performances of A.C. Floriana inevitably received a lot of international media coverage. Several of Europe’s leading football teams expressed serious interest in the services of the Eko brothers. Ilaria convinced Kofi to stay in Floriana and extend his contract with another four years. Conversely, having served the terms of his contract and keen to leave A.C. Floriana on a high note, Kwame ‘Mr. Eko’ decided it was time for a new challenge. His preference went out to F.C. Tomalona, one of the world’s most appealing and successful (it has already several European Cups in its trophy cabinet) football teams and longstanding champion of Vittoria, another Member State of the European Union. The contractual negotiations lasted a while, as there were a number of formalities to be dealt with.

5. Under Article 5 of the General Regulations of the Vittoria Football Association (F.A.), a professional football player’s licence is a document issued by the F.A. which entitles a player to practise football as a member of the federation and to be fielded in matches and official competitions as a player belonging to a specific club.

6. Article 11 of the General Regulations of the Vittoria F.A. provides:

‘Without prejudice to the exceptions laid down herein, in order to register as a professional and obtain a professional licence, a footballer must meet the general requirement of holding Vittorian nationality or the nationality of one of the countries of the European Union or the European Economic Area.’

7. Article 13 of the General Regulations stipulates that:

‘Clubs entered for official professional competitions at national level shall be entitled to register foreign non-Community players, provided that these players fulfill the following conditions, established by the Vittoria F.A, the National Professional Football League and the Association of Footballers in Vittoria:

• They must receive an annual salary of minimum € 500.000 net; and

• They must have played in at least 50% of the matches of the national team of their country during the last three seasons, barring injury.

8. Finally, Mr. Eko and F.C. Tomalona were able to successfully round off the negotiations and agreed upon a three-year contract in July 2005. In Tomalona, Mr. Eko found a group with more intrinsic quality that he had ever experienced. He instantly realised that competition would be fierce and that he would need to step up a gear to book a place in the starting lineup. That objective immediately proved to be more troublesome than expected. Mr. Eko needed time to adjust to F.C. Tomalona’s sparkling attacking playing mode, in which the only advice given to defenders really is to ensure that the team will concede one goal less than the own strikers will score. At the start of the 2005/06 season, Mr. Eko regularly started games from the bench, a totally new experience for him, coming on as a substitute only occasionally.

9. Things were further complicated by the adoption of a new rule by UEFA, Europe’s governing football association, of which all national associations are members. According to a newly devised ‘homegrown rule’, clubs must play with at least six domestically trained players during official matches. A player can be qualified as domestically trained by a club when he has been at the club for three years between the

age of 15 and 21, irrespective of his nationality. Minimum three of these domestic players must have received their training at the club itself; the other domestically trained players must have received their training at another club in the same EU Member State. The rule entered into force as from the start of the 2005/06 season.

10. Mr. Eko submitted an application to the Vittoria F.A. that this rule be repealed or at least be modified, arguing that it seriously compromises his chances of playing for F.C. Tomalona during official matches. As the Vittoria F.A. turned down his application, he brought an action before the Tribunal of First Instance in Tomalona against this decision.

11. The temporary sporting misfortune of Mr. Eko at F.C. Tomalona did not prevent the manager of the national team of Ghana to select his captain for the Africa Cup in January-February 2006. According to the 2005 Regulations for the Status and Transfer of Players of FIFA, the world’s governing football body, clubs must release their players for international matches with their country. In light of the busy agenda of F.C. Tomalona at national and international level, the team coach only reluctantly let its player depart for this African tournament, also because the big defender had finally started settling in at Tomalona by that time. In the final and decisive group stage match during the Africa Cup, against Zimbabwe, Mr. Eko did get severely injured. The medical diagnosis was harsh: immediate surgery of the cruciate ligament was inevitable. Mr. Eko was out for the remainder of the 2005/06 season, and had to miss out on the 2006 FIFA World Cup in June. When FIFA and the Ghana Football Association (‘GFA’) categorically dismissed the request of F.C. Tomalona to receive some form of financial compensation, pursuant to the 2005 FIFA Regulations for the Status and Transfer of Players, the relationship between the club and FIFA significantly deteriorated. After a round of consultation with Europe’s other leading teams, F.C. Tomalona decided to commence proceedings before the Tribunal of First Instance in Tomalona against this compulsory release system.

12. In the summer of 2006, after a disappointing football season in San Stefano, disgraced by serious allegations of fraud, Kofi expressed his desire to move to F.C. Tomalona as well, which would enable him to play again alongside his brother, despite a still running contract with A.C. Floriana. Transfer rumours run quickly in the world of football. Almost instantly, club president Del Monte received interesting offers for the younger Eko, in particular from Tomalona, amounting to € 20 million, and from Kowalski United, the champion of Anglia, also a Member State of the European Union. The owner of Kowalski United is Boris Ivanovich, a Russian media tycoon and billionaire. He made Del Monte an offer he could not refuse, bidding € 60 million for the 25-year old striker. In need of cash, Del Monte reached an agreement with Ivanovich, but Kofi refused a switch to Kowalski United. He reiterated he is relishing the prospect of a Champions League victory with his brother at F.C. Tomalona. As the Vittoria team refused to increase its original offer, Del Monte presented his player with the choice: either he could agree to play for Kowalski United, or he would stay put at A.C. Floriana and respect his contract. The situation appeared to be in a deadlock. But then, Kofi reacted in an unexpected way: he flew to Vittoria and signed a five-year contract with F.C. Tomalona, containing significantly improved contractual terms.

13. A.C. Floriana immediately reacted by lodging a complaint before the Dispute Resolution Chamber (‘DRC’) of FIFA for unilateral breach of contract without just

cause. After investigating the circumstances of the dispute, the DRC fully endorsed A.C. Floriana’s claim. It swiftly rendered the following verdict on 1 August 2006, in accordance with the 2005 FIFA Regulations for the Status and Transfer of Players:

• Kofi Eko is officially suspended for a period of four months, with immediate effect, for all official matches;

• F.C. Tomalona shall be prevented, with immediate effect, from registering new players until 1 August 2007;

• A.C. Floriana is awarded a compensation fee of € 15 million.

14. On appeal two weeks later, the Court of Arbitration for Sport (CAS) substantially confirmed this decision, reducing the compensation fee to € 12 million. Kofi Eko and F.C. Tomalona decided to seek redress before the Tribunal of First Instance in Tomalona.

15. Suddenly confronted with three distinct but parallel proceedings, the Tribunal of First Instance in Tomalona decided to join all cases. After hearing the arguments of all parties, the Tribunal was uncertain as to whether Mr. Kwame Eko, Mr. Kofi Eko and F.C. Tomalona could rely upon EU law in order to succeed in their claims. It therefore decided to stay the proceedings before it and refer the following questions to the European Court of Justice for a preliminary ruling:

1. a) Can an international sporting federation apply to a professional sportsman from Ghana a rule according to which clubs must field in league and cup matches a minimum number of domestically trained players, even though this rule applies irrespective of nationality?

b) Are the specific requirements imposed by the Vittoria F.A. to register certain professional football players compatible with the immigration policies relating to free of movement of persons in the EU?

2. Are Articles 45, 56, 101 and 102 TFEU to be interpreted as precluding international sporting associations from including in their regulations provisions imposing upon clubs to compulsory release their players for matches of the representative national teams for which they are eligible to play, without providing for adequate compensation arrangements?

3. Are Articles 45, 56, 101 and 102 TFEU to be interpreted as prohibiting national and international sporting associations to impose in their regulations sanctions on players and clubs, such as those inflicted by the FIFA Dispute Resolution Chamber, restricting the possibility to unilaterally terminate a contract, so as to ensure maintenance of contractual stability between professional players and clubs?

16. The request for a preliminary ruling arrived at the European Court of Justice on 15 September 2006. In accordance with Article 23 of the Statute of the Court of Justice, the Registrar has notified Mr. Kwame Eko, Mr. Kofi Eko and F.C. Tomalona (as applicants) and FIFA, UEFA, and the Football Association of Ghana and Vittoria (as defendants) and has invited them to submit written observations to the Court. It set the

deadline for submission at 17 January 2011. Oral hearings are provisionally scheduled for January 2011.

17. EXPLANATORY MEMORANDUM!

• FIFA and UEFA are the world’s and Europe’s football governing federations in this case and in reality. Also the FIFA Dispute Resolution Chamber does really exist.

• The 2005 FIFA Regulations for the Status and Transfer of Players can be consulted at http://www.fifa.com