Bosman—the Structure of the Ruling: the Limits of Sporting Autonomy under EU Law
On 15 December 1995, the Court of Justice provided answers to both questions referred to it by the Cour d’Appel in Liege. However, the Court was not prepared to answer those questions in the light of all the Treaty provisions mentioned in the reference court. The Court instead carefully confined itself to analysis in the light of Article 48 EEC, today Article 45 TFEU, which concerns the free movement of
workers. It left entirely to one side any examination of the application of the Treaty competition rules. This deliberate omission left open a number of issues of significance for the future adjustment of industry structures, and several will be discussed later in this chapter and elsewhere in this book.
The detail of the inquiry into the transfer system from which Bosman suffered will be explored in Chapter 9, the detail relating to nationality rules (from which he did not, at least not directly) will be examined in Chapter 8. The key to this chapter’s preoccupation is to identify how the Court found EU free movement law applicable, but without denying that sport is special and that it therefore deserves sensitive treatment in the interpretation and application of free movement law. Bosman is the foundation stone of EU sports law and so it deserves forensic structural examination.
The affected sports governing bodies lined up a series of devices with the aim of excluding entirely the application of EU law. The outcome of this strategy was failure. It is worth tracking the sequence of unsuccessful arguments to understand the thematic ambition of sports bodies to secure autonomy for their practices (the lex sportiva) and to lay bare the way that this ambition is converted (albeit unsuccessfully) into legal arguments. However, the examination also has concrete practical significance, because the Court in Bosman established a set of principles to which it has adhered consistently ever since. Broadly the key to the ruling is the conditional autonomy afforded to sports bodies under EU law. This means that EU law does not permit sport to escape its reach—there is no absolute or unconditional autonomy. But nor does EU law expose sport to an insensitive application of the rules of the internal market. Instead it takes into account the context, and allows sport to make its case for special treatment within EU law. But sport must make that case: it is an autonomy conditional on showing that it truly has special features that justify appropriately modified interpretation and application of EU free movement law. As will be shown in Chapter 5, a similar approach has subsequently infused the application of EU competition law to sport too.