The Compatibility of the Renovated System with EU Law
The renovated transfer system has not been tested for its compatibility with EU law. As explained earlier, in section 9.8, in 2002 the Commission closed its investigation into the system, observing that interested parties, including FIFPro, the players’ union, had expressed satisfaction with it, and hailing it as striking a balance between players’ free movement rights and contractual stability.m The examination of the transfer system that has been conducted since Bosman makes clear that the EU’s institutions are inclined to accept that sport is special, in particular in the matter of encouraging youth training, and that the revised transfer system is lawful. This was covered earlier.
But even at the time of the successful renegotiation of the system there were reasons to criticize it as too generous to the claimed virtues of contractual stability.102 The Commission’s ‘exchange of letters’ in March 2001, mentioned in subsection 9.8.1, expressed satisfaction with FIFA and UEFA’s plans and ended the Commission’s pursuit of the matter, but the legal foundation of the deal was calculatedly obscure. The exchange of letters was declared to have ‘formalised’ the situation^3 but, just as the ‘Bangemann compromise’ on UEFA’s ‘3 plus 2’ rule was exploded by the Court’s ruling in Bosman^^ so too the 2002 compromise could yet be dislodged by judicial intervention. A sceptical inquiry into its compatibility with EU law remains merited. Two justifications for the transfer system were accepted in
i°° More generally on legal supervision of conflicts of interest in sporting governance, see Ch 10.
- 101 IP/02/824, 5 June 2002.
- 102 See eg Van den Bogaert (n 63) ch V; R Blanpain, The Legal Status of Sportsmen and Sportswomen under International, European Belgian National and Regional Law (Kluwer 2003) Pt I.
- 103 IP/01/314 (n 60). In French, ‘formalisees’, in German, ‘formell besiegelt’, which are as legally imprecise as the English version.
Ю4 See Ch 4.8.
principle by the Court in Bosman,105 The first was the need to preserve a degree of competitive balance and equality between clubs. The second, which was confirmed in Bernard^6 was to encourage the search for and training of young players, the stars of the future. In the circumstances at stake in both cases, the justifications were not met, but the Court had left room for a reshaped system and, as explained, this has duly emerged and, in 2002, the Commission declared itself satisfied.
But both justifications, even in principle, are highly questionable. It is far from clear that the transfer system is the most effective or the least restrictive way to preserve a degree of competitive balance and equality between clubs. A method for more direct redistribution of income between clubs would be superior. Sport may well be special because of the interdependence of participant clubs, but the means used to promote that special feature are disproportionately burdensome on players. And although it is doubtless true that the transfer system serves to encourage the search for and training of young players, it has never been explained why this should be permitted in sport when it is not permitted in other industries. That is, even if one accepts that the transfer system encourages the training of future talent, the question is why that logic should not apply beyond sport, to supermarkets, to car-makers, to sellers of financial services and so on. The Court treats sport as special on this point but it has never explained why, and so the counter is that sport is simply not special. This is not to argue in favour of the complete abandonment of the transfer system, but rather to argue that a better justification for it needs to be found. That must lie in protecting the integrity of the game from relatively short- term changes in playing personnel, consequent on the—varied—patterns of national contract and employment law. The Court mentioned this point in Bosman but did not elaborate upon it at all.107 But it is a strong point. The lex sportiva, as a global system, requires some degree of control over player mobility which is not dependent on local legal variation, but there are aspects of the current system which go too far. The sections that follow expand in detail on this critique. The story of EU law’s capacity to curtail the lex sportiva governing transfers is not yet complete.