What constitutes an ‘Official Match’ under the FIFA Regulations? The case of Ben Arfa

As the 2014/2015 season draws to a close and clubs begin considering their recruitment policy for the 2015/2016 season, they will doubtless bear in mind the recent case concerning the attempted acquisition by French club OGC Nice (“Nice”) of the former Newcastle player, Hatem Ben Arfa (the “Player”) and FIFA’s application of its Regulations on the Status and Transfer of Players (the “FIFA Regulations”).¹

The case concerned FIFA’s application of Articles 5.3 and 5.4 of the FIFA Regulations, which (a) prescribe that a player can be registered with a maximum of three clubs during one season and (b) prevent a player from playing official matches for more than two clubs in a season. This article considers FIFA’s application of its FIFA Regulations and analyses the lessons that can be learned from its approach.

Factual Background

At the beginning of the 2014/2015 season, the Player was registered as a player for Newcastle United. On 2 September 2014, he was loaned to Hull City on a year-long basis.² Prior to this move, the Player had not played for Newcastle’s first team in that season. He had however made an appearance for Newcastle’s Under-21 side in a match against Reading in the Professional Under-21 Development League on 25 August 2014.

During the first half of the season, the Player played nine times for Hull City. However, the loan was brought to an end on 18 December 2014³ and, on 4 January 2015, the Player’s playing contract with Newcastle was terminated by mutual consent.⁴ The Player therefore became a free agent.

On 5 January 2015, it was reported that the Player had completed a move to Nice.⁵ However, on 14 January 2015, Nice issued a statement on its website⁶ in which it stated that FIFA had denied the Player clearance⁷ to play for Nice during the 2014/2015 season, as a result of the application of Article 5.3 of the FIFA Regulations. Article 5.3 states that:

"Players may be registered with a maximum of three clubs during one season. During this period, the player is only eligible to play official matches for two clubs...”⁸

In its statement, Nice referred to a lettersent by FIFA to the French Football Federation (the “FFF”) in which FIFA stated that the Under-21 Professional Development League match played between Newcastle United’s Under-21 team against Reading on 25 August 2014:

“…must be considered as official in the sense of the regulation”

and that it:

“…must therefore be taken into consideration in determining the application of article 5.3 of the regulations on the status and transfer of players”.⁹

In short, FIFA stated that the Player could not play for Nice in the 2014/2015 season as he had already played official matches for Hull City and Newcastle United’s Under-21 team in that season (i.e. for two clubs, the maximum permitted in one season).

On 22 January 2015, Nice issued a further statement on its website, in which it stated (in translation):

"As some people are obviously having trouble interpreting the English federation's first letter sent at the start of January, OGC Nice appreciate that the FA has written another letter on Wednesday to dispel any ambiguity.It is perfectly explicit. Crucially, you can read therein the following phrase: 'We do not consider U21 games to be official matches'.This confirmation leaves no doubt as to its interpretation, especially as the English federation has taken care to reinforce this position in its letter.We hope that with this clarification, the relevant bodies can now announce their decision without hesitation."¹⁰

On 30 January 2015, the French Football League (the “LFP”) stated¹¹ that although the Player could not play for Nice in the 2014/2015 season, he could still be registered with the club pursuant to article 5.3 of the FIFA Regulations and article 212 of the LFP Regulations. Further, the LFP stated that the Player could train with Nice in “secure legal conditions”.¹²

It should be noted that, at the time of writing this article, the Player is a now again a free agent, having left Nice.