Seeing red: FIFA v Premier League clubs

In this article, Tom Seamer and Imen Larabi explain the dispute between FIFA and certain Premier League clubs regarding the release of players for international fixtures in ‘red list’ countries, and explore how matters may progress.

Background

The pandemic has created significant difficulties in relation to international travel.  England is no exception, with travelers that enter England having visited a designated ‘red list’ country in the past 10 days being required to quarantine for 10 days in a quarantine hotel. Many countries are currently on the red list, including Brazil, Mexico and Turkey.

World Cup qualifiers will be held in the coming days (from 30 August to 7 September).  Accordingly, and as is usual, national teams have called up players. Many of those players are contracted to Premier League clubs.

For example, Mo Salah was originally named in the Egypt squad for fixtures against Angola (in Egypt on 1 September) and Gabon (in Gabon on 5 September).  However, Egypt is on the red list.  Therefore, even had Salah left Egypt for Gabon on 2 September, he would still have been required to quarantine for 10 days on his return to England, assuming that he returned to England within 10 days of being in Egypt (i.e. on 12 September or earlier).

Given that Liverpool have fixtures on 12, 15 and 18 September, and given that Salah would have been unable to train whilst in hotel quarantine, the harm that would have been caused to Liverpool is obvious.

Against that background the Premier Leagues clubs issued a statement on 24 August announcing that they had “decided not to release players for international matches played in red-list countries next month.”

Consistent with that stance, Salah has not joined up with the Egyptian squad.  The consequent harm that will be caused to the Egyptian national team, and to the integrity of the World Cup qualifying tournament, is again obvious.

On 25 August, FIFA President Gianni Infantino responded to the Premier League clubs, stating that players should be released for the qualifiers “to preserve and protect the sporting integrity of competitions around the world”.

Whilst FIFA has lobbied the UK government, to date no exemption from English quarantine requirements has been granted to footballers. 

As a result, the relevant players have, in FIFPRO’s words, been left with an “impossible choice” between their employer and their national team, and FIFA and the Premier League clubs remain on an apparent collision course.

Why has this issue not arisen before?

The red list has been in place for many months.  It may therefore be asked why this issue has not arisen before.  The answer is that FIFA previously had in place an exception that allowed clubs not to release players to their national teams if the player would be forced to quarantine on their return.  However, that exception came to an end in April 2021.

What happens next?

Various national teams, clubs and players have attempted to chart a practical course.  For instance, Brazil called up additional players, on the assumption that Premier League players will not be able to participate in their fixtures, whilst certain Argentinians have agreed with their clubs to join their national teams, but to leave camp early, and to return to England via Croatia such as to avoid the need to quarantine.

However, assuming that no solution is reached in the coming days, the issue of most interest, at least to sports lawyers, will be whether FIFA proceeds to sanction those clubs who refused to release their players.

Whilst Mr Infantino’s statement did not refer to such a possibility, a letter that he sent to CONMEBOL (the South American confederation) has been leaked.  In that letter, dated 23 August, Mr Infantino stated that FIFA will “reiterate” to the relevant clubs “the regulations that they are subject to, as well as the consequences of any breach” (free translation).

So, what are the relevant regulations, have they been breached, and what are the potential consequences?

The release of players to national teams is governed by Annexe 1 to the FIFA Regulations on the Status and Transfer of Players. Article 1(2) of Annexe 1 provides that (emphasis added): “Clubs are obliged to release their registered players to the representative teams of the country for which the player is eligible to play on the basis of his nationality if they are called up by the association concerned. Any agreement between a player and a club to the contrary is prohibited.”

Article 1(2) of Annexe 1 then provides that (emphasis added): “The release of players under the terms of paragraph 1 of this article is mandatory for all international windows”.

Thus, it would appear that the relevant Premier League clubs are in clear breach of Annexe 1.

However, Article 1(9) of Annexe 1 provides that (emphasis added): “Players complying with a call-up from their association under the terms of this article shall resume duty with their clubs no later than 24 hours after the end of the period for which they had to be released. This period shall be extended to 48 hours if the representative teams’ activities concerned took place in a different confederation to the one in which the player’s club is registered. Clubs shall be informed in writing of a player’s outbound and return schedule ten days before the start of the release period. Associations shall ensure that players are able to return to their clubs on time after the match.”

Here, the national associations would not have been able to “ensure” that the relevant players were able to “return to their clubs” within those timescales, as the players would have been in hotel quarantine.  Accordingly, the Premier League clubs may argue that, given that reality, they were not, in fact, “obliged” to release their players. 

Similarly, the Premier League clubs might attempt to argue that, due to the red list rules, the release sought by the national teams was in fact longer than that permitted by FIFA’s international window, such that release was not required or enforceable.

It will be interesting to see how such any such arguments are received by FIFA’s Disciplinary Committee and, perhaps, by the Court of Arbitration for Sport (on appeal).

Nevertheless, Article 6 of Annexe 1 provides that (emphasis added): “Violations of any of the provisions set forth in this annexe shall result in the imposition of disciplinary measures to be decided by the FIFA Disciplinary Committee based on the FIFA Disciplinary Code.”

Accordingly, Article 6 mandates the imposition of sanctions if a violation is held to have been committed.

In turn, Articles 6(1) and 6(3) of the FIFA Disciplinary Code provide that a variety of sanctions, including reprimands, fines1 and sporting sanctions (such as the deduction of points) can be imposed on clubs.

Whilst Premier League points deductions would seem very unlikely (given that the Premier League is organised by neither FIFA nor The FA, such that issues of jurisdiction would likely arise),2 the imposition of hefty fines surely cannot be ruled out.

Indeed, in 2015 West Ham were fined CHF 100,000 for a breach of Annexe 1 in respect of Diafra Sakho.  However, no sporting sanctions were imposed notwithstanding that the relevant ‘excuse’ was incomparable to the current situation,3 and further notwithstanding that Sakho had helped West Ham to progress in the FA Cup when he should have been with his national team.

But that is not all, Article 5 of Annexe 1 provides that (emphasis added): “A player who has been called up by his association for one of its representative teams is, unless otherwise agreed by the relevant association, not entitled to play for the club with which he is registered during the period for which he has been released or should have been released pursuant to the provisions of this annexe, plus an additional period of five days.”

Thus, and for example, unless the Brazilian FA agrees otherwise, Thiago Silva will (under Annexe 1) not be entitled to play for Chelsea until 14 September (i.e. once five days have elapsed from the end of the CONMEBOL international window on 9 September).  As a result, and according to Annexe 1, he would not be entitled to take part in Chelsea’s games on 11 and 14 September.

Therefore, further sanctions could perhaps follow in due course if Thiago Silva and the other players in the same position are chosen by their clubs to play in matches shortly following the closure of the international window.

Thus, whilst we hope that an arrangement can be reached between FIFA and the relevant Premier League clubs, the potential for multiple sets of disciplinary proceedings is clear.  Equally, if such proceedings are instigated, then the clubs will have arguments in their defence, and very strong arguments in mitigation, given the very unusual circumstances brought about by the pandemic.  Accordingly, any decisions will make for interesting reading.

Authored By

Tom Seamer
Barrister