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The Immediate Aftermath of Bosman

The essence of the ruling in Bosman is that the Court did not deny that sport is special, but it refused to accept that sport was quite as special as had been pressed on it by sporting bodies, and as had long been the practice.

The Court’s ruling in Bosman was delivered in December 1995. This meant that the 1995—96 football season was cut in half. There were at the time three major club competitions in European football—the European Cup, which had become

  • 14 Bosman (n 5) Opinion of Lenz AG, para 143.
  • 15 ibid.
  • 16 ibid.

the Champions League in 1992, the European Cup Winners Cup, which was discontinued in 1999, and the UEFA Cup, which would become the Europa League in 2009. Before Bosman, clubs were limited by the applicable nationality-based rules. After Bosman had exposed the incompatibility of the rules with EU law, the second half of the season proceeded with no restrictions permitted in principle on the availability of EU nationals. As is common when law meets sport, the practice was different from the principle. The initial response of the Union of European Football Associations (UEFA) to Bosman was to declare that the ‘3 plus 2’ nationality restrictions should continue to be observed in the European club competitions for that season. This was surely unlawful, and the Commission made clear this was so.[1] UEFA reluctantly agreed in late February 1996 that it would comply with the ruling.[2] [3] However, no formal challenge was initiated and the ‘3 plus 2’ rules were in practice maintained. Juventus beat Ajax in the 1996 European Cup Final: the Italian team comprised nine Italian players and, in midfield, a Frenchman (Didier Deschamps) and a Portuguese (Paulo Sousa), while Ajax fielded eight Dutchman, a Finn (Jari Litmanen), and two non-EU nationals, the Nigerian forwards Finidi George and Kanu. But that was the last glimpse of the old world. In 1997 the Juventus team that lost the Final 3—1 to Borussia Dortmund contained only six Italians. When Manchester United beat Chelsea in the all-English 2008 Final in Moscow, only ten out of the twenty-eight players who appeared across the 120 minutes were English, although Ryan Giggs, a Welshman, swelled the number of British nationals to eleven. It is common today to find that the leading clubs in Europe have only a minority of players holding the nationality of the state in which the club is based.

In the immediate aftermath of Bosman in December 1995 some domestic leagues, including that in England, promptly abandoned existing restrictions on EU nationals. I® Elsewhere, including in Germany, there were rumours that informal agreements had been struck under which clubs agreed to complete the competitions in season 1995—96 in accordance with the pre-existing rules, notwithstanding the immediate effect in law of the Bosman ruling. Here too there was no legal challenge. And in time practice fell into line with EU law. This means that all EU nationals must be treated equally for the purposes of eligibility for selection for club matches. Clubs were therefore enabled to pursue much more flexible recruiting strategies. An English club is consequently as free to pick a Dutch or Italian player as it is an English player. A number of clubs, particularly but not only the richer English clubs, have fielded an entire eleven comprising ‘footballing foreigners’.

  • [1] eg ‘EU Orders UEFA to Act on Bosman’ The Independent (London, 20 January 1996) 27;‘Bosman Rebels Face Huge Fine’ The Guardian (London, 1 February 1996) 20. Any such fine couldhave been imposed only under competition law: the Commission has no power to take action against aprivate party for violation of the free movement rules on which the judgment was based.
  • [2] ‘UEFA Yields on Bosman Ruling’ Financial Times (London, 20 February 1996) 2.
  • [3] 1® ‘Premiership Scraps Foreigner Rule’ The Independent (London, 23 December 1995) 24.
 
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