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The Court in Error

A point that has widely been overlooked is that in Bosman part of the Court’s analysis is wrong. As explained previously, the Court’s conclusion that, contrary to the case pressed on its by football’s governing bodies, there is no necessary connection between the identity of a club and the origin of its players is persuasive, even if nothing in EU law explicitly supports it. However, that positive assessment does not attach to all of the Court’s reasoning.

It was pressed on the Court in Bosman that the removal of quotas restricting the number of non-national players selected by a club would damage the international game. An influx of footballing migrants would diminish the places available in clubs for local players, with the result that the national representative eleven of the country experiencing a net inflow of players would find it increasingly difficult to pick from a large enough pool. So—the argument runs—club football needs to be made to ‘buy national’ in order to sustain the vitality of the international game.25

In Bosman the Court swept this argument aside. As mentioned earlier, it based its rejection on an assumption about the release of cross-border trade that follows the application of EU free movement law to restrictive practices within a Member State. So opening up the employment market in one Member State to nationals of other Member States increases competition in that market, which makes life less comfortable for nationals of that Member State who were previously protected by the discriminatory practices. But the same is true in every other Member State. So the workers concerned are able to look to opportunities for employment in the markets of other Member States, which are equally cleansed of their discriminatory obstacles.26

In 2003 the same brand of argument was advanced before the Court in Deutscher Handballbund eV v Maros Kolpak.27 The affected sport in Kolpak was handball. The complainant was a Slovak national: the case concerned the Association Agreement with Slovakia, which was not then a Member State. It was submitted that Germany needed to maintain nationality-based discrimination at club level in order to sustain and promote the strength of the German national handball side.2® The Court had no need to address the meat of this submission because the rules in question discriminated against the applicant, a Slovak, but otherwise treated all EEA nationals alike. So the claimed concern to protect German handball players was simply not reflected in the rule. But the Court showed no sympathy for such a rule in any event, and repeated its refusal in Bosman to treat nationality discrimination at club level as permissible under EU law. It did not deal separately with the argument that the opportunities that a national loses in his or her home market as a result of the abolition of discrimination are compensated by those that become available in other states’ markets and that this addresses anxiety that the pool of players available for selection in the national side will be drained, but Advocate General Stix- Hackl did. She noted the earlier treatment of the matter by the Court in Bosman[1] [2] [3] [4] [5] and, following the Court’s approach, she pointed out that ‘up-and-coming young German players are not restricted to playing for a German club’ and may instead play with foreign clubs.30

So the Court’s understanding of the effect of the application of the Treaty rules on the freedom of movement for workers is that the employment markets of all the Member States will be opened up to competition on the basis of ability, not nationality. It assumes that the pool of players eligible for the national team and playing locally may diminish, but that this will be compensated by the ability of players to move abroad and find work elsewhere, while still retaining eligibility for the national side of their ‘home’ state.[6] However, this is to neglect an important element in sport’s special character.

The Court makes assumptions about the virtues of economic integration in the EU that fail to take account of the specific nature of sport. Orthodoxy would admittedly dictate that an integrated market is a more efficient market, but in football there are clear limits on the degree of market restructuring that will follow the elimination of national borders. Integration of the labour market will not create more jobs. The number of clubs will remain stable. And it is improbable that, in the absence of quotas, the same distribution of players by nationality will prevail. States that supply a lot of skilled labour will be able to take advantage of access to newly opened markets, while less productive states with clubs that can afford to import players will find they lose the share of local players they were previously able to protect and this will be far from made up by export opportunities. Some states will be net importers of players, some will be net exporters.32 So the pool of players available to the national team will in some states dwindle in size, which will normally tend to weaken the strength of that state’s national team. It is entirely plausible to argue that that is simply a price that international teams must pay in order to improve labour mobility in the internal market and to protect the rights of individual workers in accordance with Article 45 TFEU. So the legal analysis would hold that a rule which discriminates on the basis of nationality in club football as a means to protect the size of the pool of players available for selection for the national side goes beyond what is necessary to sustain the existence of the national side and so goes beyond what will be tolerated by EU law. But that is not how the Court dealt with the matter in Bosman. In Bosman it denied that eliminating nationality discrimination in club football would have any detrimental effect on the strength of national representative teams. But in states which are net importers of footballers it probably will.

So preservation of nationality discrimination in the club game could be defended with reference to the sport-specific concern to preserve the continued vitality of national representative teams. Restricting the number of ‘footballing foreigners’ that a club may use protects the national team, a concern that simply does not arise in connection with the regulation of labour markets in car-making or the provision of financial services, where the very idea of a national representative team would be preposterous.

As an intellectual challenge, it would be intriguing to see the issue re-tested in litigation. My own view is that the argument should not succeed. The benefits are not certain: the claim is simply that more players will be available for selection for the national team in countries which are net importers of players, and it does not necessarily follow that quality levels among the very best players who make up the national side will be affected. Indeed one consequence of mandating preference in labour markets for a particular nationality is to increase demand for qualifying players, which will typically lead to an increase in price—that is, in the wages that the qualifying player can command. So the result of nationality-based preference may not be better quality footballers but rather better paid (and perhaps lazier) players. In any event, it is highly improbable that the Court will choose to re-open a matter it plainly feels it dealt with successfully in Bosman. My point, to sum up, is that the Court did not fully address the worth of arguments in favour of nationality-based discrimination in club football. It missed an appreciation that sport’s embrace of national representative teams is special. But I think that ultimately the Court’s conclusion against the compatibility of such rules with EU law is nevertheless correct.

However, the argument may have traction in other sports, in part because they are not the sport that was at stake in Bosman in respect of which the Court has set a course on which it seems dependent and in part because the case may carry still more force in a context other than football.

  • [1] It is unlikely that the major clubs would wish to support this argument, for it limits their accessto the best talent. On the rules requiring the release of players for international matches, see Ch 10.7.
  • [2] 26 Bosman (n 5) para 134.
  • [3] CaseC-438/00 Deutscher Handballbund eVv Maros Kolpak [2003] ECR I-4135.
  • [4] 2® ibid para 52. 29 ibid Opinion of Stix-Hackl AG, para 68.
  • [5] 30 ibid Opinion of Stix-Hackl AG, para 69.
  • [6] The role of the ‘player release’ rules in this context are made explicit at Bosman (n 5) para 133: ontheir compatibility with EU law, see Ch 10.7. 32 European Commission, ‘The Economic and Legal Aspects of Transfers of Players’ (January2013) ch 3 provides evidence of such variation accessed 29 November 2016.
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