Bosman concerned only the application of the transfer system to the out-of-contract player who is an EU national wishing to move from a club in one Member State to another. Bernard too involved a player whose (fixed-term, three-year) contract had come to an end. And in both cases the Court addressed free movement law alone. However, after Bosman attention had quickly turned to just how much of the rest of the transfer system might be endangered at law, were Bosman to be exploited beyond its particular context. It was quickly predicted that on at least three points one could anticipate attempts by eager litigants to stretch Bosman beyond its relatively narrow factual and legal matrix and to exploit EU law to achieve an even greater relaxation of the transfer system to the benefit of players.5°
First, in formal terms, the ruling did not touch circumstances that were internal to a Member State—a French player moving from one French club to another French club or, in the peculiar case of the United Kingdom, a single state for EU purposes but home to four separate members of UEFA and FIFA, a transfer between England and Wales or Scotland and Northern Ireland. For the purposes of free movement law this would be a situation purely internal to a single Member State and so the necessary jurisdictional trigger of EU law, the cross-border dimension, would be missing. It was, however, not difficult to summon the dog that didn’t bark in the Court’s ruling in Bosman, EU competition law, in order to imagine a way for EU law to exercise control over circumstances of this type. Even before Bosman there were decisions subjecting football to EU competition law,5i and in his Opinion in Bosman Advocate General Lenz examined that aspect too. The Court did not, but the competition rules in this instance reach where the free movement rules do not. Put simply, if a club is forced to pay a transfer fee to a club in its own Member State in circumstances where it would not have to pay a fee to a club situated in another Member State, then there will be inevitable repercussions for the patterns of cross-border trade. A matter apparently purely internal to a state is in fact not of such limited effect on the EU’s internal market. The distortive effect on the wider market of the transfer system as a horizontal agreement between clubs strengthened by the involvement of football’s governing bodies brings it within the scope of application ofArticle 101(1) TFEU. This does not inevitably mean it will be unlawful but, translating the refusal in Bosman to endorse under free movement law the claimed need for a system that catches even out-of-contract players to the field of competition law, it probably would be treated as unlawful. In the determination of how ‘special’ sport truly is there seems no reason to adopt separate treatment of practices depending on whether they fall under Article 45 TFEU or Article 101 TFEU. This case is made in Chapter 7 with particular emphasis on the value of Article 165 TFEU’s acceptance that sport has a ‘specific nature’ as a means to frame an integrated law of the internal market in application to sport.
Second, in formal terms, the ruling in Bosman dealt only with nationals of an EU Member State. It did not address the position of non-nationals, and most pertinently it did not inquire into the status of nationals of states, including other European states, with which the EU has association agreements and which were and are the source of plenty of good professional footballers. It therefore seemed highly plausible that the type of claim made by Bosman could not be limited to nationals of EU Member States alone. The general validity of this line of reasoning was subsequently confirmed by the Court in 2003 in its ruling in Deutscher Handballbund eV v Maros Kolpakd2 A Slovak handball player sought to rely on the Association Agreement between the EU and Slovakia, which was not then a Member State, to defeat rules in Germany that discriminated against him on the basis of his nationality. The Court agreed with him, and repeated its refusal in Bosman to treat nationality discrimination at club level as permissible. The ruling is on its terms confined to claimants already lawfully employed by a club established in a Member State, so it does not fully align the position of the non-EU migrant to that privileged status of the national of a Member State. This approach was confirmed in Igor Simutenkov, which concerned a Russian national playing football in Spain.53 Both cases are, however, a firm demonstration that Bosman has implications beyond the borders of the twenty-eight Member States. They would be pertinent too to athletes working in the United Kingdom were it to leave the EU and strike some type of association agreement to regulate its future trade relations with the EU twenty-seven.
- 52 CaseC-438/00 Deutscher Handballbund eV v Maros Kolpak  ECR I-4135. See J-P Dubey, ‘Annotation’ (2005) 42 CML Rev 499.
- 53 Case C-265/03  ECR I-2579.
Third, in formal terms the ruling in Bosman attacked only the transfer system in application to players whose contracts had expired. It did not address the application of the transfer system to players whose contracts were still on foot. This causes the sharp division noted previously which creates commercial incentives for clubs to avoid contracts for high-performing players coming to an end. However, it cannot be excluded that EU law can be used to attack the transfer system even in its narrowed down application to players who remain in contract. After all, the system exerts a restrictive effect on such players which is at its heart the same as that from which Bosman himself suffered—that is, the player must contend not only with the orthodox effects of contract and employment law but also with the collectively agreed and vigorously enforced transfer rules dictated by the lex sportiva. This is an obstacle with which no normal employee outside sport would have to contend. A transfer system applicable to players who are in contract is a system that is capable of restricting the free movement of workers and causing distortion of competition in the internal market, and for that reason it does not escape the application of EU law.
Football’s governing bodies, having been forced by Bosman to scrap the transfer system as applied to out-of-contract players, were not inclined to go further and abandon it for all players. A renovated system lives on. But it may be legally vulnerable.
The renovated system now deserves consideration. Section 9.8 examines the transfer system as it has been rearranged in the light of Bosman. This is to some extent a moving target, both because it has been periodically amended by FIFA and UEFA and also because of the increasing prominence of the CAS in giving concrete shape to its meaning, but nonetheless its overall shape is readily identified and explained. The following analysis then places the system more fully in its legal context. Footballers’ liberty is restricted by the transfer system in a way that does not apply generally to employees, but—so it seems in general discourse under EU law—football is special enough to justify such practices. That assumption is challenged. It is argued that both the justifications for the transfer system embraced by the Court in Bosman and in Bernard are in fact—in different ways—flawed. The argument is made that a different basis should be relied on to justify a transfer system, albeit that only a less restrictive version than the current model should be accepted within which other means are found to meet its professed objectives, particularly the redistribution of income. Put another way, sport is special, and so is the position of footballers as employees with unusually restricted capacity to change employer, but sport is not special enough to justify all aspects of the current regime to which footballers are uniquely subject.