Desktop version

Home arrow Law

but a Conditional Autonomy for Sport under EU Law

The Court thus methodically refused all eight invitations to place sport in general, and the dispute involving Bosman in particular, beyond the reach of EU law. And it used reasoning which is in the main perfectly orthodox and familiar to EU lawyers. The underlying message throughout is that sport would need to make its case for special treatment within the interpretation of EU internal market law, not by seeking to slip beyond its reach. As the Court put it, having concluded that the transfer rules constituted an obstacle to freedom of movement for workers, EU law forbids them unless those rules pursue a legitimate aim compatible with the Treaty and are justified by pressing reasons of public interest and, moreover, they must be such as to ensure achievement of the aim in question and must not go beyond what is necessary for that purpose.[1] [2]

Any autonomy granted to sport by EU law is conditional on meeting the expectations located in the tests of justification recognized by EU internal market law. And it is in the shaping of the environment of justification that sport needs to aspire to embed its claims to be ‘special’.

In Bosman, when the Court turned to justification, it immediately accepted that sport is special. This is the rulings famous paragraph 106:

In view of the considerable social importance of sporting activities and in particular football in the Community, the aims of maintaining a balance between clubs by preserving a certain degree of equality and uncertainty as to results and of encouraging the recruitment and training of young players must be accepted as legitimate/5

This statement is foundationally important in the development of EU sports law. Article 165, which entered into force in 2009, embraces ‘the specific nature of sport’: here, in the 1995 ruling in Bosman, are its fertile roots.

The structural point is that the Court, having spent much time explaining why it was refusing to accept the claims of sports bodies to absolute autonomy from the application of EU law, turned to address the possibility of justifying practices that fall within the scope of EU law, and immediately it embraces a recognition that sport has distinct characteristics. Sport is special—in at least two respects. The Court accepts as legitimate the aims of maintaining a balance between clubs by preserving a certain degree of equality and uncertainty as to results and of encouraging the recruitment and training of young players. The Court had no basis whatsoever in the Treaty for recognizing any such concessions. The Treaty made no mention of sport. In fact, the Court, which notes in its ruling that it had had these virtues pressed on it by the Belgian football association, UEFA, and the French and Italian governments/6 was making its own choices about the nature and purpose of sport and its claim to a degree of special treatment in the interpretation and application of EU internal market law. This is one of the direct consequences of the point that EU legislative competence is narrower than the reach of internal market law. It demands a creative Court.

In fact, UEFA had in some respects done an astonishingly poor job in defending the special character of sport. The game’s governing bodies plainly held a complacent expectation that Bosman would be induced or intimidated to settle the matter without his day in court. In April 1995, just eight months before the ruling was delivered, UEFA was reported as ‘reluctant to believe that Bosman might win, because there is a feeling generally that the player will be approached by one of the interested parties to settle the matter out of court and drop the case’Th As late as 16 November 1995, a month before the ruling, UEFA requested the Court to order a measure of inquiry under Article 60 of the Rules of Procedure of the Court with a view to obtaining fuller information on the role played by transfer fees in the financing of small or medium-sized football clubs, the machinery governing the distribution of income within the existing football structures, and the presence or absence of alternative machinery if the system of transfer fees were to disappear.[3] But the Court dismissed this application. It was made at a time when, in accordance with the Rules of Procedure, the oral procedure was closed. Such an application can be admitted only if it relates to facts which may have a decisive influence and which the party concerned could not put forward before the close of the oral procedure. But here the Court held that UEFA could have submitted its request before the close of the oral procedure: such questions had in any event been raised, in particular by Bosman in his written observations.

In Bosman the Court proceeded to take a negative view of the possibility to justify the particular transfer system of which Bosman himself had fallen foul. But it was plainly receptive to the maintenance of a less restrictive system, even though no such system would be tolerated in a normal industry. It accepted that sport is special.

  • [1] Bosman (n 23) para 106. 75 ibid para 106. 76 ibid para 105.
  • [2] 77 ‘Bosman case could end transfers’ The Guardian (London, 4 April 1995) 18.
  • [3] Noted at Bosman (n 23) paras 52—54. 79 ibid para 107. 80 ibid para 108. 81 ibid para 109. 82 ibid.
< Prev   CONTENTS   Source   Next >

Related topics