3. The transfer of Martin Braithwaite
FC Barcelona’s acquisition of Martin Braithwaite took place outside the transfer window, putting his former club Leganes at a disadvantage. The exemption was granted owing to the injury of Barcelona's Ousmane Dembele. When players are declared out of action for five months or more, an emergency transfer or signing is seen to be a fair request, which administrators can enable. The Catalan team was granted permission to sign Braithwaite in accordance with RFEF regulations which dictate that a player may be signed as a free agent or if he is tied to another La Liga club. Due to the fact that they were replacing Dembele, the replacement signing had to be comparable - that is, another forward - and a 15-day window was imposed. Leganes are in a tight situation following Braithwaite's transfer to Barcelona, as they have lost a crucial player while being unable to acquire a replacement.
While Barcelona is vying for La Liga greatness, Leganes are struggling for survival, and Braithwaite was their leading scorer. [16]
His move to Camp Nou exacerbates Los Pepineros' (Leganes) troubles, which were already exacerbated by the January transfer of striker Youssef En-Neysri to Sevilla. Leganes general director Martin Ortega told reporters: "We believe that there is an unjust regulation that benefits Barcelona...Leganes is the one who suffers as a result of this." The club is seeking to mitigate their difficulties by contacting the Spanish football authorities to secure a replacement for Braithwaite. Barcelona paid Leganes €18 million (£15 million/$19 million) to bring Braithwaite to Catalunya. Leganes were compelled to accept the deal since it satisfied the release clause of the Denmark international. [17] This demonstrates clearly the strength of the large clubs; they can maneuver around the transfer system which is designed to provide equal competition but, in this case, fails to accomplish that goal.
4. The Transfer window in the light of EU-law
The author poses that it is implausible to conclude that the FIFA transfer windows' pro-competitive benefits exceed their restrictive impacts, as they are unlikely to be deemed the least restrictive method of achieving these benefits. As a result, the FIFA "windows system" would not be excluded under Article 101(3) TFEU and, if challenged, might be null and void under Article 101(2) TFEU. [18] This chapter will shed a light on this issue in hand.
Transfer windows restrict players' capacity to seek alternative jobs and clubs' ability to hire them. Thus, the employment of this system can be viewed as a matter of both free movement and competition law. There is, however, one distinguishing feature of professional sport that cannot be found elsewhere that must be considered: the interdependence of players in competitive tournaments. In athletics, like in other industries or marketplaces, opponents exist to be defeated. The distinction between sport and other industries is that if sport opponents are beaten out of sight, the entire objective of competition is destroyed. [19]
As a result, mutual dependency, or the desire to maintain a balance between clubs creates the possibility of laws being accepted that would not be permitted in other sectors, however, proportionality must always be maintained. This indicates that football regulating authorities may act counter to labour law and competition law if the policy promotes competitive balance. [20] In 2007 the commission of the European Communities presented a white paper on sport which addresses the transfer window of football. [21] The paperstates that in 2001, as part of the investigation into alleged EC competition law violations and following consultations with the Commission, football authorities agreed to revise FIFA Regulations on international football transfers, focusing on compensation for training costs incurred by sports clubs, the establishment of transfer periods, the protection of teenage players' school education, and guaranteed access to national courts. The Commission views this arrangement as an example of good practice since it maintains a competitive balance between sports teams while adhering to EU legislation requirements. [22] Thus, the author believes it is highly credible to assert that the transfer window mechanism is for sports purposes and is a sporting rule, conforming to EU legislation.
References
[16] ‘Why Are Barcelona Allowed to Sign Braithwaite Outside the Transfer Window? | Goal.Com’ <https://www.goal.com/en-us/news/why-barcelona-allowed-sign-braithwaite-outside-transfer/gfefcuw0d4bm18t4u16wxcucr> accessed 27 February 2022.
[17] ibid.
[18] Andersson (n 30).
[19] Weatherhill (n 8) 2.
[20] Andersson (n 30).
[21] Commission of the European Communites, ‘White Paper on Sport’ (2007).
[22] ibid.
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