It has already been explained in Chapter 4 that twenty years after Walrave and Koch the Court in Bosman refused to extend similarly generous treatment under EU law to nationality discrimination in club football.5 This, the Court concluded, would go too far: it would deprive the Treaty provision governing the free movement of workers, today Article 45 TFEU, ‘of its practical effect and the fundamental right of free access to employment which the Treaty confers individually on each worker in the Community [would be] rendered nugatory’. The Court refused to accept the submission made in defence of the rules (the lex sportiva) that in club football there was a particular significance attached to the nationality of players. It added that freedom of movement for workers, by opening up the employment market in one Member State to nationals of the other Member States, has the effect of reducing workers’ chances of finding employment within the Member State of which they are nationals, but equally it offers them prospects of employment in other Member States.7 This is true of all workers in the EU. Club footballers, in the analysis of the Court, are not special. In the past, practice governing nationality requirements
ibid para 134.
in national Leagues varied: within the EU Bosman changed this at a stroke. The Court also dismissed the submission that nationality clauses prevent the richest clubs from employing the cream among foreign players and thereby maintaining a competitive balance between clubs, because, as it tersely noted, no rules limit the possibility for such clubs to recruit the best national players, ‘thus undermining that balance to just the same extent’.
The Court in Bosman maintained the misplaced reliance on the notion that there are rules motivated by ‘reasons which are not of an economic nature ... and are thus of sporting interest only’. Any damage that this may do to the integrity of EU law by excluding from review practices with an economic effect was mitigated by the Court’s supplementary observation that restriction on the scope of application of EU law ‘must remain limited to its proper objective’.n And so it refused to sanction nationality-based discrimination in club football. This, as mentioned earlier and as fully articulated in Chapter 7, would be better presented today with recognition of the ruling in Meca-Medina and the embrace of ‘the specific nature of sport’ in Article 165 TFEU as a discriminatory practice with economic effects that offends against EU law and is not a necessary element in the organization of club football. Reliance on the notion of rules that are of purely sporting interest is thoroughly unhelpful. But, to reinforce the point made previously, this would be merely a matter of superior presentation. It would not alter the outcome.
Advocate General Trabucchi, in Dona v Mantero, had suggested a rather generous approach to the ability of clubs to exercise discrimination in player selection without infringing EU law.12 He considered that it would be a matter of purely sporting interest, and therefore permissible, were a national association to limit the participation of foreign players in championship matches ‘so as to ensure that the winning team will be representative of the State of which it is the champion team’. He added that this view was strengthened in the light of the fact that the champion club proceeds to represent the state at international level. These observations were not examined by the Court at all in its brief judgment in the case. They were not regarded as persuasive in the limited amount of academic writing that addressed the issue in the years before Bosman opened the floodgates.13 And they seem still less persuasive today, especially because it is no longer the case that participation in European club football’s primary competition, then the European Cup and now the (mis-named) Champions’ League, is confined to clubs that are champion of their country. But nevertheless Mr Trabucchi’s views deserve to be remembered, because they show that there was and is room to argue about just how ‘special’ sport truly is.
After all, at the time nothing at all provided any direction in the Treaty about how to resolve such questions, because the Treaty did not even mention sport, and even today the framing provided by Article 165 TFEU offers no concrete guidance on exactly what the admitted ‘specific nature of sport’ entails. It is submitted that Mr Trabucchi mistakenly conflated the separate issues of whether a club may be taken to represent a country and whether that club’s players possess any such representative function. The Court’s approach in Bosman is to be preferred: it is motivated by rejection of the claim that the identity of the players has any connection with a club’s representative function. It refused to accept that a link based on nationality was in any sense inherent to the structure of club football, so a violation of EU free movement law was declared. But this was in no sense the inevitable consequence of a diligent reading of the Treaty. It required an infusion of sports-specific knowhow. Exactly this—almost intuitive—basis for interpreting EU law is visible too in the Opinion of Advocate General Lenz in Bosman. He, unlike Mr Trabucchi in Dona v Mantero, was not prepared to accept that nationality discrimination played any necessary part in club football and his Opinion set the Court on a course to reach the same conclusion. Mr Lenz was a good deal more vivid in his explanation of his reasoning in Bosman than the Court. He agreed with the submissions made on behalf of the Commission and Bosman that ‘the great majority of a club’s supporters are much more interested in the success of their club than in the composition of the team’, and added too that the participation of foreign players does not ‘prevent a team’s supporters from identifying with the team’.14 And, adding colourful detail, he noted that ‘One of the most popular players ever to play for TSV I860 Munchen was undoubtedly Petar Radenkovic from what was then Yugoslavia’, and referred too to Kevin Keegan at Hamburger SV, Eric Cantona at Manchester United, and Jurgen Klinsmann at Tottenham Hotspur.15 So—his final point in this vein—only a few of the players at Bayern Munich come from Bavaria (let alone Munich), yet this does not destroy their identity as Bayern Munichd6
None of this is found in the EU’s legal texts. But the quest to understand the intersection of EU internal market law and the lex sportiva demands that the former engage with and critically assess the key ingredients of the latter’s claim that sport is ‘special’.
-  ibid para 129.
-  See P Lanfranchi and M Taylor, Moving with the Ball: The Migration of Professional Footballers(Bloomsbury 2001). See also R Elliott and J Harris (eds), Football and Migration: Perspectives, Placesand Players (Routledge 2015).
-  Bosman (n 5) para 135. ш ibid para 127. n ibid. i2 Dona (n 4).
-  13 S Weatherill, ‘Discrimination on Grounds of Nationality in Sport’ (1989) 9 YEL 55, 60—63;G Renz, ‘Freizugigkeit von Berufsfussballspielern innerhalb der EG’ in M Will (ed), Sportrecht in Europa(CF Muller Juristischer Verlag 1993); M Hilf, Die Freizugigkeit des Berufsfussballspielers innerhalb derEuropaischen Gemeinschaft 1984/10 Neue Juristische Wochenschrift 517.