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Concluding Comments

The transfer system was amended in the light of Bosman, but even today aspects of its operation remain vulnerable to attack driven by EU law. It is a truly intriguing case study into the extent to which sport is special, and how this should be reflected in law.

It has been argued that both justifications for a transfer system accepted by the Court in Bosman are unpersuasive. The transfer system is a poorer way to preserve a degree of competitive balance and equality between clubs than a horizontal revenue-sharing scheme. Sport is special because of the interdependence of participant clubs, but the transfer system is not a necessary or even well-t argeted means to promote that special feature. And youth training is not a demonstrated sports-specific concern at all, at least not on the evidence addressed by the Court of Justice in Bosman and Bernard. 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. This is a legitimate concern of the lex sportiva. But although that is a good reason for establishing a uniformly applicable transfer system under the lex sportiva which transcends the diverse patterns of national contract and employment law, it is far from clear that anything so restrictive as the current system can be justified under EU law. Advocate General Lenz took this view over twenty years ago in Bosman: the full implications of his scepticism about the compatibility of the transfer system with EU law have not yet been fully worked out. Motivated by exactly this perception, the players’ union, FIFPro, announced in September 2015 an intention to challenge the current system by submitting a complaint to the Commission.^7 It is likely that the trail of litigation pitting the transfer system against the demands of EU law which was initiated by Bosman is not yet at an end.

 
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