Study Into the Identification of Themes and Issues Which Can Be Dealt with in a Social Dialogue in the European Profesional Football Sector
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STUDY INTO THE IDENTIFICATION OF THEMES AND ISSUES WHICH CAN BE DEALT WITH IN A SOCIAL DIALOGUE IN THE EUROPEAN PROFESIONAL FOOTBALL SECTOR Industrial Relations and Social Dialogue Budget Heading 04030301 VP/2007/001/901 May 2008 T.M.C. ASSER INSTITUUT EDGE HILL UNIVERSITY KATHOLIEKE UNIVERSITEIT LEUVEN 1 2 CONTENTS CHAPTER I: INTRODUCTION CHAPTER II: SOCIAL DIALOGUE – AN INTERNATIONAL OVERVIEW I. Introduction II. The standards of the International Labour Organisation (ILO) A. Introductory remarks B. Tripartism C. Development of the ILO standards D. The Declaration on Fundamental Principles and Rights at Work (1998) E. Overview of standards 1. Fundamental Conventions on freedom of association and collective bargaining 2. Freedom of association (agriculture, non-metropolitan territories) 3. Industrial relations F. Conventions 87 and 98 1. Convention 87 2. Convention 98 3. The right to strike G. Ratifications of Convention 87 H. The Committee of Experts and Committee on Freedom of Association III. The European Union A. The European social partners B. The question of representativeness C. Levels of social dialogue 1. Cross-industry level 2. Sector level 3. Enterprise level IV. The role of social partners in the legislative process under the Social Chapter A. Consultation B. Intervention C. Initiative V. European agreement VI. Practical insight in the European social dialogue A. Typology of European social dialogue outcomes 1. Agreements implemented in accordance with Article 139(2): minimum standards a. Agreements implemented by Council decision b. Autonomous agreements implemented by the procedures and practices specific to management and labour and the Member States 2. Agreements with other characteristics a. Frameworks of action b. Guidelines and codes of conduct c. Policy orientations d. Joint opinions e. Declarations f. Tools B. The social dialogue survey VII. ANNEX: ratifications of ILO Conventions 87 and 98 1. Convention 87 2. Convention 98 CHAPTER III: BEST PRACTICES / LESSONS LEARNED FROM SOCIAL DIALOGUE COMMITTEES IN OTHER INDUSTRIAL SECTORS CHAPTER IV: SOCIAL DIALOGUE: BACKGROUND AND RELEVANCE TO SPORT Labour Regulation in the Treaty System Community legislative competence – internal market and residual Social policy legislative competence and internal market competence compared Outline of developments in Social Dialogue Present State of Articles 137-139 EC Powers of Harmonisation: Detail Caveats to Social Policy-based Harmonisation Social Dialogue as a catalyst Autonomous negotiations Autonomous agreements beyond express legislative competences Obligations to Consult 3 The Actors and Products of Social Dialogue Permanent institutions in European Social Dialogue Representativeness criteria The Commission’s Typology of Social Dialogue Agreements Minimum Standards Agreements Process-Oriented Texts Joint Opinions and Tools for the Exchange of Information Procedural Texts Follow-Up Reports Legal Relationship between national and European initiatives in social policy Supremacy Direct effect Private Parties and horizontal effects of the Treaty Regulations Directives Council Decisions Recommendations and Opinions General Principles of Community Law State Liability Obligations of sympathetic interpretation National Labour Law and Erga Omnes Effect Legal Effects of Autonomous Agreements Social Dialogue in Sport Encouraging Dialogue Within Sport Social Dialogue in Sport Recent Developments in Football Governance Some Thoughts about the European Club Association’s Possible Participation in a Social Dialogue in the European Professional Football Sector CHAPTER V: AGENDA FOR A SOCIAL DIALOGUE IN EUROPEAN PROFESSIONAL FOOTBALL 1. Introduction 2. Agreements 3. Professional football sector 3.1. The FIFA regulations for the status and transfer of players (version 2008) 3.1.1. The Status of Players 3.1.2. Registration of Players Registration of Players and Registration Rights Registration Periods Lending Players 3.1.3. Maintenance of Contractual Stability Contract Dration Measures to Prevent Abuse (clause 5) Players under 18 3.1.4. Third Party Influence on Clubs 3.1.5. Protection of Minors 3.1.6. Training Compensation 3.1.7. Solidarity Mechanism 3.1.8. FIFA Jurisdiction 3.1.9. Release of Players 4. Memorandum of Understanding FIFPRO-UEFA Annex 1 European Professional Football Player Contract Minimum Requirements Introduction The agreement and parties Memorandum of Understanding between UEFA and FIFPRO Definitions Relationship Club’s obligations Player’s obligations Image rights Loan Player discipline and grievance Anti-doping Dispute resolution Football Regulations Collective Bargaining Agreement 4 5. National Collective Bargaining Agreements Status of social dialogue at the national level Belgium Denmark France Greece Italy The Netherlands Portugal Spain Sweden 6. “Football specific issues” Issues that are part of employment contracts 6.1. Unilateral Extension Options 6.2. Image Rights Social and Health issues 6.3. Artificial Pitches 6.4. Doping 6.5. Pension Funds Other Issues 6.6. Home Grown Players Rule and 6+5 Rule 6.7. International Match Calendar 6.8. Non-EU Nationals 6.9. Players’ Agents 6.10. Salary Capping 7. Conclusion Type of agreement Content of the agreement ANNEXES Belgium Denmark France Italy The Netherlands Portugal Spain Sweden 5 6 CHAPTER I: INTRODUCTION The White Paper on Sport states that in the light of a growing number of challenges to sport governance, social dialogue at European level can contribute to addressing common concerns of employers and athletes, including agreements on employment relations and working conditions in the sector in accordance with EC Treaty provisions. The Commission encourages and welcomes all efforts leading to the establishment of European Social Dialogue Committees in the sport sector. In previous years several initiatives were undertaken by FIFPro, EFFC and the Asser Institute in the form of EU subsidized studies, seminars and conferences in order to promote Social Dialogue in the European professional football sector and make potential social partner organisations aware of the instrument of Social Dialogue for settling issues through negotiations between management and labour by way of a European collective bargaining agreement for their mutual benefit. Additionally, in the so-called Louvain Report conclusions were presented on the representativeness of the parties concerned. The Asser Institute undertook a separate study into the position of G-14 regarding participation in a Social Dialogue at the European level. In November 2006, at the concluding stage of the campaign, the outcome of a FIFPro conference in Brussels with all stakeholders, including the international football governing bodies UEFA and FIFA present, was that consensus in principle exists about the usefulness of initiating the process to establish an official Social Dialogue Committee under the EC Treaty. FIFPro and EPFL were prepared to take the lead. The purpose of this study is to identify the “content” of a Social Dialogue in the European professional football sector, once a pertinent Committee will have been officially established under EU auspices, that is possible themes and issues which are suitable to be considered and discussed in a Social Dialogue, the formal framework for setting an agenda of topics being Article 136 et seq. of the EC Treaty. The envisaged study is a follow-up to the previous studies that were undertaken to promote Social Dialogue in the European professional football sector in accordance with Articles 138 and 139 of the EC Treaty. In those studies inter alia social partner organisations at the national level in EU member states and candidate countries were identified and it was investigated whether a Social Dialogue exists at that level between management and labour. The first phase of operations is concluded. The second phase is the establishment of a Social Dialogue. This study is expected to facilitate Social Dialogue in the European professional football sector by anticipating the third phase in which an agenda for the Social Dialogue has to be set. This study will help social partner organisations and other stakeholders at international and national level to become aware of the possible options regarding themes and issues which can be dealt with between management and labour in a Social Dialogue at the European level. The study is expected to facilitate the start of negotiations once the official Social Dialogue Committee will be established in the European professional football sector. It will offer social partner organisations a helpful instrument for determining their thematic framework. A similar effect is mutatis mutandis to be expected with regard to Social Dialogue in professional football at the national level of EU member states and candidate countries. Regarding the executing of this study, the following remarks should be made: 7 1. A relevant questionnaire was drafted and distributed amongst social partner organisations at the national level with the support of EPFL (clubs) and FIFPro Division Europe (players). 2. An essential aspect to be researched in this context is to what extent the agenda and the way of dealing with themes and issues is determined by the fact that the broader framework of a Social Dialogue in European professional football in fact includes pertinent rules and regulations of the international football governing bodies UEFA and FIFA. 3. The practice in other industrial sectors having an official Social Dialogue Committee in operation, was studied