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Bosman Changed Everything

For almost twenty years after Walrave and Koch and Dona v Mantero in the mid- 1970s the Court of Justice was not faced by any sports-related cases. This was not simply a matter of chance. That gap in time reveals the power with which sports bodies are able to resist ‘ordinary law’. Challenging governing bodies in sport is no trivial task. A sporting career is short. Litigation is typically lengthy. The powers of sports bodies are immense and they are global in their reach. The cost of challenging them is likely to be high, both financially and professionally. A bad tackle can end a sportsman’s career. Suing the sport’s governing body carries the risk of equally devastating effects. Walrave and Koch themselves declined to pursue their complaint any further, apparently in the face of a threat by the defendant sporting body, the UCI, to withdraw their event from the world cycling championship [1] [2]

schedule^1 Even the ban on the participation of English football clubs in highly profitable European club competition imposed in the wake of the Heysel Stadium disaster in 1985 stimulated no challenge based on EU law, even though its application to all clubs, rather than those whose fans posed actual or potential threats to public order, was surely a disproportionate interference with economic freedoms guaranteed under EU law.22

But along came a fading Belgian footballer, and EU sports law erupted.

Walrave and Koch involved a sport, paced cycling, that will be unfamiliar to most Europeans. Not so Bosman73 Bosman changed everything, in football, in sport more generally, and even more so in the suddenly and irrevocably energized discipline of EU sports law.

The Court’s landmark ruling of December 1995 in Bosman repays the closest attention even today because it established what has become orthodoxy. It is a judgment which, in addressing the legitimate scope of sporting autonomy under EU law, is simultaneously both constraining and permissive. The Court refused to accept a string of devices that were aimed at excluding the application of EU law to sport, but then it found space for recognition of sport’s particular characteristics in judging whether sporting rules were justified. Bosman is considerably more sophisticated in its detailed reasoning than Walrave and Koch but it has a close thematic correspondence to Walrave and Koch in that it chooses an approach that builds the argument that ‘sport is special’ into the interpretation of EU law rather than using special status as a basis for excluding the application of EU law. It is a shining example of the adjudicative or interpretative strategy for achieving sporting autonomy which is mapped in Chapter 2 of this book. And in this vein Bosman conforms to the orthodoxy of EU internal market law. Finding a practice that tends to harm the functioning of the internal market is typically readily achieved, but EU law is about more than merely economic integration. Trade-restrictive practices are put to the test, not automatically disallowed, and for sport, as for those defending interests expressed at national level in defence of matters such as consumer protection/4 cultural diversity,25 environmental protection/6 and the protection of human dignity/7 there is room for the rule-maker to choose why its choices should be treated as important enough to prevail over market-making. The Charter of Fundamental [3] [4] [5] [6] [7] [8] [9]

Rights, endowed with binding effect since 2009, is especially significant today in providing constitutional confirmation that EU internal market law is not simply about trade liberalization: it is about regulatory values too. But this is not transformative, for the Court has long astutely embedded the possibility to justify barriers to inter-state trade into the structure of free movement law.28 It should be appreciated that, precisely because of this room allowed to justify practices, the Court’s approach is far more potentially generous to sporting autonomy than is frequently lamented by sports governing bodies aggrieved at alleged disrespect shown by EU law to the lex sportiva.

The factual background to Bosman was supplied by the transfer system. This is a long-established feature of the industry, dating back to the nineteenth century. The existence of a transfer system has long been and still is a major reason why footballers are not treated in the same way as normal employees. The basic model rests on each player being registered with a football club, in addition to having a normal contract of employment with that club. He or, given the recent rise of a professional dimension to the women’s game, she cannot play for another club, even if that other club is willing to offer him or her a better deal, unless in addition the registration is transferred from the first club to the new club. And that transfer of registration occurs only if the first club agrees: which has typically involved payment of a fee to the first club. In form it is the player’s registration that is transferred but in effect, and in common parlance, it is the player. Here, then, footballers are treated differently from ordinary employees in other sectors, whose status depends on contact and is not affected by collectively agreed and enforced arrangements of the type found in professional football. At its most brutal, the system provided not only that a transfer could be completed only when a fee had been paid by the new club to the first club, but also that the first club could simply refuse to agree to the transfer and could retain the player’s registration—even after the contract of employment had expired, and so the player was not receiving any payment from the first club. The imbalance of power is astonishing. Footballers’ freedom to choose between possible employers was far more restricted than that of other employees, which amounted to an anti-competitive restraint with a consequent depressive effect on the wages they could command.

In the United Kingdom, the original home of professional football, this extreme ‘retain and transfer’ system was finally brought to an end as a result of the decision of the English High Court in 1964 in Eastham v Newcastle United2 The High Court found it to be an unreasonable restraint of trade and therefore contrary to the common law. The court’s principal objection was to the particularly onerous ‘retain’ element of the system rather than the basic underlying concept that a collectively agreed and enforced transfer system could be justified in football, whereas, in other industries, the relationship between employer and employee would be determined by contractual negotiation. This, therefore, left room for a revised system to be applied, focusing on payment of a fee in return for agreement to transfer a player’s [10]

29 [1964] Ch 413.

registration, while ameliorating the player’s position to some extent by suppressing the ability of the first club simply to retain the registration and in practice force the footballer to abandon a career as a professional. So a revised system lived on, varying in different countries but in Europe with a layer set by UEFA on top, and it was this to which Bosman fell victim. The detail is set out at some length in the judgment,[11] [12] but the problem is readily summarized.

Jean-Marc Bosman was a Belgian professional footballer, born in 1964. In the early part of his career Bosman had earned a reputation as a player of promise and by the time of the dispute that generated the landmark litigation he was under contract to RC Liege, a Belgian first division club. That contract expired at the end of June 1990. In April 1990 RC Liege offered him a new contract for one season, but at a much reduced salary. The brutal reality was that the best of Bosman’s career was now behind him. Bosman chose to reject RC Liege’s offer and instead found a club in the French second division, US Dunkerque, which was willing to make him a better offer. Were this a normal industry it would simply follow that the worker whose contract of employment had come to an end would be free to agree a contract with a new employer. But football was not and is not a normal industry. The two clubs were required to come to an agreement according to which the transfer certificate pertaining to Bosman would be released by the Belgian federation to its French counterpart. An agreement was reached, involving payment by US Dunkerque of a compensation fee of BFr1,200,000, but, apparently as a result of the French club’s financial position^ no payment was ever made. In July 1990 Bosman found himself not only without a club but, in line with the applicable system in football, suspended from playing.

The key point deserves repetition. This was not simply a dispute between an employee and a past and future employer. Football is organized according to a hierarchical structure. Football clubs wishing to participate in official competitions must affiliate to national football associations. Each Member State of the EU has its own national association, excepting the United Kingdom alone, which has four associations, one for each home country, a pattern reflected at international level in the separate participation of England, Northern Ireland, Scotland, and Wales in international tournaments. National associations are in turn members of FIFA, the world organizing body, which is based in Switzerland. FIFA is split into confederations for each continent. The European confederation is UEFA, also based in Switzerland, and the national associations of the EU Member States are members of UEFA and as such undertake to comply with its rules. Players are contracted to clubs, but their rights and obligations as employees are not determined solely by the terms of the contract and applicable employment law. They are subject also to the collectively agreed system establishing, among other things, a transfer system which is enforced through the combined power of all the involved national and international federations and clubs. Dunkerque could have concluded a contract of employment with Bosman. But they could not have picked him to play in a match without having met the overall requirements for registration. Any such attempt would have led to sanctions being imposed promptly on both player and club. Governance in the sport— the pyramid with FIFA at its apex—cuts across contractual negotiation. Footballers are less free than ordinary workers in choosing their employer.

And so began the litigation before the Belgian courts.^

In accordance with the rules prevailing in Belgium, RC Liege suspended Bosman so that he could not play in the 1990—91 football season. This prompted him to pursue redress before the courts. Initially, he sought an interlocutory order that the transfer rules did not apply to him. He was granted an interlocutory order in Liege in November 1990 ordering the club and the Belgian association to refrain from impeding his engagement. However, he was unable to secure employment with a leading club. As his case progressed through the courts, he was able to find only relatively small clubs in France and Belgium who were willing to offer him terms. RC Liege’s readiness to cut his wage so savagely in the summer of 1990, combined with the lack of interest in acquiring Bosman’s services shown by major clubs at the time, may suggest that his ability to play top-level football was in any event in doubt, but it was widely suspected that Bosman was also the victim of a boycott pursued by leading clubs after 1990, despite the interim order in his favour.

The litigation initiated by Bosman was chequered by a remarkable series of delays and aborted references to Luxembourg. Other defendants were joined. There were interventions, inter alia, by footballers’ associations. During this period Bosman also attempted to challenge the Commission’s approach to football before the Court, but his application was rejected as inadmissible.33 Eventually the matter reached the Court in October 1993 by way of the preliminary reference procedure, then under Article 177 of the Treaty Establishing the European Community (EC), now Article 267 TFEU. The questions asked by the Cour d’Appel in Liege were directed at the application of Articles 48, 85, and 86 EEC—now Articles 45, 101, and 102 TFEU: that is, the provisions dealing with the free movement of workers and competition law.

The questions referred to the Court of Justice for a preliminary ruling were:

Are Articles 48, 85 and 86 of the Treaty of Rome of 25 March 1957 [now Articles 45, 101 and 102 TFEU] to be interpreted as:

(i) prohibiting a football club from requiring and receiving payment of a sum of money upon the engagement of one of its players who has come to the end of his contract by a new employing club; [13]

(ii) prohibiting the national and international sporting associations or federations from including in their respective regulations provisions restricting access of foreign players from the European Community to the competitions which they organize?

The Court was therefore asked to interpret EU law in the context of the transfer rules of which Bosman had fallen foul. It was also asked to rule on the compatibility of nationality discrimination in club football with EU law. Like the transfer system these rules too had undergone adjustment over time, but by the time of the litigation they were rules set by UEFA, the continental federation, based on a so-called ‘3 plus 2’ requirement. It was permitted that each national association could limit to three the number of foreign players whom a club may field in any first division match in their national championships, plus two players who had played in the country of the relevant national association for an uninterrupted period of five years, including three years as a junior (so-called ‘assimilated’ players). The same limitation was mandatorily applicable to UEFA matches in competitions for club teams.[14] [15] [16] [17] These European club competitions, today the Champions League and the Europa League, complement national tournaments. They are highly prestigious in sporting terms, but they are also extremely lucrative in the commercial context. One consequence of these rules was that clubs from countries which tolerated relatively relaxed rules at domestic level frequently found that they were unable to field the first-choice team used in their national League when they came to compete in European-level club competitions. The ‘3 plus 2’ rule forced them to leave out some non-national players in favour of less skilled eligible national players.

This was an intriguing follow-up to the treatment of national discrimination in international football which the Court had supplied twenty years earlier in Walrave and Koch. However, the ‘3 plus 2’ rule appeared to have nothing to do with Bosman’s situation. For that reason it was far from clear that the Court even had jurisdiction to answer the questions, which seemed irrelevant to the matter before the national court. This is a technical area of EU law. There are instances in which the Court takes the view that the questions it is asked are hypothetical and/or not formulated in a sufficiently helpful way to permit it to provide an answer that will assist the referring court.36 This leads it to decline jurisdiction to answer the questions referred to it by a national court. But the Court normally takes an indulgent view, assuming in a cooperative spirit that the referring court has good reason for asking the question even if it is not immediately obvious, and that was its preference in Bosman.37 It chose not to disturb the national court’s assessment that application of the nationality clauses could impede Bosman’s career by reducing his chances of being employed or fielded in a match by a club from another Member State and that therefore challenge to them was not irrelevant to the dispute. In this respect, in setting bounds governing the inadmissibility of preliminary references, Bosman has become one of the judgments of the Court which it is most fond of citing in its own rulings.[18] This is remote from sports law, the current concern. But there is a sports-specific rhythm to the Court’s receptivity. Sports bodies are relatively well protected from litigants for practical reasons associated with those bodies’ global reach, power, and deep pockets combined too with the typical fast pace of sporting competition compared to the glacial pace of judicial process. So the Court knew that the likely consequence of a refusal to address the compatibility of the ‘3 plus 2’ rule with EU law would have been the rule’s sustained immunity in practice from judicial scrutiny. Moreover, lurking beneath the Court’s generous approach to the admissibility of the reference was a further procedural reason. The Commission is empowered to bring infringement proceedings against states which it believes to be in violation of EU law3[19] and, moreover, it has specific powers of investigation and sanction in the private sphere in so far as violation of the competition rules is concerned.[20] [21] But it is not equipped with any power to act directly against private parties accused of violation of the Treaty rules on free movement. The use of national courts, and reliance on the preliminary reference procedure, is therefore especially significant as a means to police such infractions. This is in principle not a relevant consideration in determining the admissibility of a reference and it does not feature in the Court’s explanation. But the Court was not unaware of this twist. In his Opinion, Advocate General Lenz expressly remarked upon the practical immunity that sporting associations would continue to enjoy were the Court to refuse to address the issueT And, despite the tenuous connection between Bosman’s plight and the rules of nationality discrimination in club football, the Court did choose to address the issue.

  • [1] Case 13/76 [1976] ECR 1333.
  • [2] eg S Weatherill, ‘Discrimination on Grounds of Nationality in Sport’ (1989) 9 YEL 55. In SWeatherill, ‘The Lex Sportiva and EU Law: The Academic Lawyer’s Path Before and After Bosman’ inA Duval and B Van Rompuy (eds), The Legacy of Bosman: Revisiting the Relationship between EU Lawand Sport (TMC Asser/Springer 2016) ch 10, I was able to find only eight academic papers and onebook dealing with EU sports law published in the 20 years following Walrave and Koch. I do not pretend that this search is exhaustive—I subsequently also found W Schroeder, ‘Sport und EuropaischeIntegration: Die Diskriminierung von Sportlern in der EG’, Band 25: Europarecht/VolkerrechtStudien und Materialen (Munich 1989), but I doubt I have missed much.
  • [3] This is recounted, though without citation of sources, by H Van Staveren, ‘The Rules of theSports Community and the Law of the State’, in Sport and the Law (Proceedings of the EighteenthColloquy on European Law, Maastricht, 12—14 October 1988), Council of Europe 1989; andG Veth, ‘Uitsluiting van buitenlandse voetballers: mogelijk binnen de EEG?’ (1978) 53 NederlandsJuristenblad 504.
  • [4] cf A Evans, ‘Freedom of Trade under the Common Law and EC Law: The Case of the FootballBans’ (1986) 102 LQR 510.
  • [5] Case C-415/93 Union royale belge des societes de football association ASBL v Jean-Marc Bosman[1995] ECR I-4921.
  • [6] eg Case C-441/04A-Punkt Schmuckhandels GmbH v Claudia Schmidt [2006] ECR I-2093; CaseC-265/12 Citroen Belux, judgment of18 July 2013.
  • [7] eg Case C-208/09 Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien [2010] ECR I-13693.
  • [8] 26 eg Case C-379/98 Preussen Elektra [2001] ECR I-2099.
  • [9] eg Case C-36/02 Omega Spielhallen [2004] ECR I-9609.
  • [10] See Weatherill (n 13).
  • [11] Bosman (n 23) paras 6—24. Also Advocate General Lenz’s Opinion contains an extensive anddetailed examination. For a useful collection of contemporary materials and some analysis, see RBlanpain and R Inston, The Bosman Case: The End of the Transfer System? (Sweet and Maxwell/Peeters1996); see also S Van den Bogaert, Practical Regulation of the Mobility of Sportsmen in the EU postBosman (Kluwer 2005) ch IV.
  • [12] Bosman (n 23) para 33 of the judgment.
  • [13] 2 On the twists and turns, see J-L Dupont [Bosman’s lawyer], ‘Le droit communautaire et lasituation du sportif professionale avant l’arret Bosman [1996] RMUE 65; B Garcia, ‘He Was NotAlone: Bosman in Context’ in A Duval and B Van Rompuy (eds), The Legacy of Bosman: Revisiting theRelationship between EU Law and Sport (TMC Asser/Springer 2016) ch 2. 33 Case C-117/91 Jean-Marc Bosman v Commission [1991] ECR I-4837; an application for interimmeasures was rejected in Case C-117/91R Bosman [1991] ECR I-3353.
  • [14] Bosman (n 23) paras 25—27.
  • [15] eg Case C-83/91 Wienand Meilicke v ADV/ORGA FA MeyerAG [1992] ECR I-4871; C-186/07Club Nautico de Gran Canaria [2008] ECR I-60.
  • [16] 36 eg Cases C-320—322/90 Telemarsicabruzzo v Circostel [1993] ECR I-393; Case C-123/00Christina Bellamy [2001] ECR I-2795; Case C-380/05 Centro Europa 7Srl [2008] ECR I-349.
  • [17] Bosman (n 23) paras 55—67.
  • [18] See M Derlen and J Lindholm, ‘Bosman: A Legacy beyond Sports’ in A Duval and B VanRompuy (eds), The Legacy of Bosman: Revisiting the Relationship between EU Law and Sport (TMCAsser/Springer 2016) ch 3.
  • [19] TFEU, Art 258. A fine may be imposed pursuant to TFEU, Art 260.
  • [20] Council Regulation (EC) 1/2003 of 16 December 2002 on the implementation of the rules oncompetition laid down in Arts 81 and 82 of the Treaty [2003] OJ L1/1.
  • [21] Bosman (n 23) paras 111—19, Opinion of Lenz AG.
 
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