Failing to Justify the Transfer System
The Court decided that the transfer system was not an adequate means of maintaining financial and competitive balance in the world of football. It did not do this in any remotely systematic way. The rules did not preclude the richest clubs from acquiring the best players nor did they ‘prevent the availability of financial resources from being a decisive factor in competitive sport, thus considerably altering the balance between clubs’/9 The Court agreed that the prospect of receiving a transfer fee is ‘likely to encourage football clubs to seek new talent and train young players’/0 But it could not see that that prospect could serve as a decisive factor in encouraging recruitment and training or as an adequate means of financing such activities, given that it is not possible to predict the sporting future of young players with any certainty/1 Some will make it as professional players, most will not. Transfer fees are uncertain and in any event unrelated to the actual cost borne by clubs of training both future professional players and those who will never play professionally/2 The Court added that ‘the same aims can be achieved at least as efficiently by other means which do not impede freedom of movement for workers’, and on this point it made reference to the fuller discussion of possible models provided in the rich and thoughtful Opinion of Advocate General Lenz/3
83 ibid para 110. Mr Lenz reminisces—i ncluding recall of ‘phone calls from the German political world’ during the preparation of his Opinion—in C-O Lenz, ‘Foreword’ in A Duval and B Van Rompuy (eds), The Legacy of Bosman: Revisiting the Relationship between EU Law and Sport (TMC Asser/Springer 2016).
So the system of which Bosman had fallen foul was damned. But the Court had clearly left open the possibility of renovation of a system that might meet the demands imposed by EU law, especially (and perhaps only) where a connection between fees paid and expenses incurred could be established, thereby reflecting the legitimate concern to induce training of young players. Moreover, the ruling’s condemnation was aimed explicitly at a system requiring a payment on the expiry of the player’s contract with a club, leaving open the possibility to justify collectively imposed restraints on players wishing to change clubs while still under contract. It is, however, not for the Court to spell out exactly what is permitted, still less to direct what should be done by the governing bodies in football. The Court’s job is strictly to decide whether challenged practices comply with EU internal market law or not. But Bosman plainly provided clues as to possible avenues of reform, and the transfer system, adjusted and refined, lives on today. The interest in whether it complies with the demands of EU law is, however, certainly not exhausted: this is pursued in Chapter 9.