Mr. Eko Case M-1/06 Kwame and Kofi Eko and F.C. Tomalona v FIFA, UEFA & others1. Back in the seventies, Yaw Eko was a sprinter with an international reputation. Herepresented Ghana at several world championships and at the Olympic games inMontreal in 1976 in the 100m athletics. Nowadays, he lives with his family in a smallvillage built on the banks of Lake Volta in Ghana. He goes fishing, and also owns asmall piece of land, on which he grows cacao trees. Mr. Eko and his wife Abba are theproud 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 sportsmicrobe. Just like him, they love running, but only when there is a football involved. Askids, playing around on the streets, they were both spotted by talent scouts and receivedproper 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. Inthe summer of 2000, he signed a five-year deal with A.C. Floriana, a team playing inthe first division of San Stefano, a Member State of the European Union. A.C. Florianais a strong team, with a good national reputation. It has won two nationalchampionships, in ’56 and ’69. It has never really excelled at the international stage, inthe European Cup competitions. Strong, ruthless and courageous, Kwame quicklyobtained a place in the centre of the Floriana defence. Back home, Kwame is also aregular in the selection of the national team of Ghana, ‘the Black Stars’. Beloved by histeam-mates, feared and respected by his opponents, he is the captain of the nationalside.3. In the summer of 2003, Kwame, whom the home fans of A.C. Floriana gently refer toas ‘Mr. Eko’ in their chants, convinced the chairman of Floriana to transfer also hisyounger 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 goby unnoticed. Ilaria, the daughter of Floriana’s chairman Del Monte, fell for the charmsof the young striker. Already after a couple of months, the happy couple decided to getmarried. Pursuant to the San Stefano nationality laws, Kofi automatically acquired thenationality of San Stefano, as the spouse of a national. Meanwhile, also Kofi’sintegration into the team was to everyone’s liking. He adjusted himself easily to thetactical and defensive style of playing in San Stefano. His lightning pace, coupled withhis fine positional play, proved the key to unsettle many a defence in the first division ofSan Stefano. All teams in San Stefano came to fear A.C. Floriana, and especially itsprolific African striker, whom the national sports media admiringly called ‘the BlackPanther’. In 2004, A.C. Floriana won the national cup. And one year later, in the2004/05 season, the team performed even better. Kofi became top scorer in thecompetition. His goals, and the impenetrability of the Floriana defence, guided by hisbrother, landed A.C. Floriana on the second place in the competition, worthy of a ticketto the preliminary rounds of the European Champions League.
4. The performances of A.C. Floriana inevitably received a lot of international mediacoverage. Several of Europe’s leading football teams expressed serious interest in theservices of the Eko brothers. Ilaria convinced Kofi to stay in Floriana and extend hiscontract with another four years. Conversely, having served the terms of his contractand keen to leave A.C. Floriana on a high note, Kwame ‘Mr. Eko’ decided it was timefor a new challenge. His preference went out to F.C. Tomalona, one of the world’s mostappealing and successful (it has already several European Cups in its trophy cabinet)football teams and longstanding champion of Vittoria, another Member State of theEuropean Union. The contractual negotiations lasted a while, as there were a number offormalities 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. whichentitles a player to practise football as a member of the federation and to be fielded inmatches 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 thenegotiations and agreed upon a three-year contract in July 2005. In Tomalona, Mr. Ekofound a group with more intrinsic quality that he had ever experienced. He instantlyrealised that competition would be fierce and that he would need to step up a gear tobook a place in the starting lineup. That objective immediately proved to be moretroublesome than expected. Mr. Eko needed time to adjust to F.C. Tomalona’s sparklingattacking playing mode, in which the only advice given to defenders really is to ensurethat the team will concede one goal less than the own strikers will score. At the start ofthe 2005/06 season, Mr. Eko regularly started games from the bench, a totally newexperience for him, coming on as a substitute only occasionally.9. Things were further complicated by the adoption of a new rule by UEFA, Europe’sgoverning football association, of which all national associations are members.According to a newly devised ‘homegrown rule’, clubs must play with at least sixdomestically trained players during official matches. A player can be qualified asdomestically 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 domesticplayers must have received their training at the club itself; the other domestically trainedplayers 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 atleast 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, hebrought an action before the Tribunal of First Instance in Tomalona against thisdecision.11. The temporary sporting misfortune of Mr. Eko at F.C. Tomalona did not prevent themanager of the national team of Ghana to select his captain for the Africa Cup inJanuary-February 2006. According to the 2005 Regulations for the Status and Transferof Players of FIFA, the world’s governing football body, clubs must release theirplayers 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 itsplayer depart for this African tournament, also because the big defender had finallystarted settling in at Tomalona by that time. In the final and decisive group stage matchduring the Africa Cup, against Zimbabwe, Mr. Eko did get severely injured. Themedical 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 the2006 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 offinancial compensation, pursuant to the 2005 FIFA Regulations for the Status andTransfer of Players, the relationship between the club and FIFA significantlydeteriorated. After a round of consultation with Europe’s other leading teams, F.C.Tomalona decided to commence proceedings before the Tribunal of First Instance inTomalona 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, despitea still running contract with A.C. Floriana. Transfer rumours run quickly in the world offootball. Almost instantly, club president Del Monte received interesting offers for theyounger Eko, in particular from Tomalona, amounting to € 20 million, and fromKowalski 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 andbillionaire. He made Del Monte an offer he could not refuse, bidding € 60 million forthe 25-year old striker. In need of cash, Del Monte reached an agreement withIvanovich, but Kofi refused a switch to Kowalski United. He reiterated he is relishingthe prospect of a Champions League victory with his brother at F.C. Tomalona. As theVittoria team refused to increase its original offer, Del Monte presented his player withthe choice: either he could agree to play for Kowalski United, or he would stay put atA.C. Floriana and respect his contract. The situation appeared to be in a deadlock. Butthen, Kofi reacted in an unexpected way: he flew to Vittoria and signed a five-yearcontract with F.C. Tomalona, containing significantly improved contractual terms.13. A.C. Floriana immediately reacted by lodging a complaint before the DisputeResolution Chamber (‘DRC’) of FIFA for unilateral breach of contract without just
cause. After investigating the circumstances of the dispute, the DRC fully endorsedA.C. Floriana’s claim. It swiftly rendered the following verdict on 1 August 2006, inaccordance 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) substantiallyconfirmed this decision, reducing the compensation fee to € 12 million. Kofi Eko andF.C. Tomalona decided to seek redress before the Tribunal of First Instance inTomalona.15. Suddenly confronted with three distinct but parallel proceedings, the Tribunal ofFirst Instance in Tomalona decided to join all cases. After hearing the arguments of allparties, the Tribunal was uncertain as to whether Mr. Kwame Eko, Mr. Kofi Eko andF.C. Tomalona could rely upon EU law in order to succeed in their claims. It thereforedecided to stay the proceedings before it and refer the following questions to theEuropean 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 15September 2006. In accordance with Article 23 of the Statute of the Court of Justice, theRegistrar has notified Mr. Kwame Eko, Mr. Kofi Eko and F.C. Tomalona (asapplicants) and FIFA, UEFA, and the Football Association of Ghana and Vittoria (asdefendants) 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 scheduledfor 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