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Failing to Justify Nationality Discrimination in Club Football

The Court was far less generous in its treatment of the nationality discrimination practised under the ‘3 plus 2’ rule in European club football. This was quickly and easily identified as an instance of discrimination within the scope of EU law. Clubs were not limited in the players they could add to their squad, but they were limited in the players they could select to play in official matches. This influenced their economic decisions by pushing them to prefer players whose nationality met the rules. The effect was to induce favouritism for particular nationals at the expense of nationals of other Member States.

The matter therefore rested on whether the Court could be persuaded that the nationality-based rules were justified. It could not.

The structure of the argument is once again richly instructive. There was no realistic prospect of arguing that the transfer rules were without economic character or effect, but in relation to the nationality rules the Court was invited to re-visit its finding in Walrave and Koch that EU law ‘does not affect the composition of sport teams, in particular national teams, the formation of which is a question of purely sporting interest and as such has nothing to do with economic activity’.84 At the level of detail, the question in Bosman was whether this reasoning could be extended to grant autonomy to nationality discrimination practised in club football. More broadly the question arose whether the Court would stick to its claim in Walrave and Koch that such practices have nothing to do with economic activity—which, as exposed earlier, is simply not correct.

Drawing on Walrave and Koch, the Belgian football association, UEFA, and the German, French, and Italian governments argued that the nationality clauses were ‘justified on non-economic grounds, concerning only the sport as such’.85 What was at stake, they argued, was preservation of ‘the traditional link between each club and its country, a factor of great importance in enabling the public to identify with its favourite team and ensuring that clubs taking part in international competitions effectively represent their countries’^6 So Walrave and Koch accepted that there is a natural obligatory tie between the nationality of a player and the international team he represents; in Bosman governing bodies in sport attempted to persuade the Court to extend this logic to authorize also that same natural obligatory tie between the nationality of a player and the club team he represents. So French clubs should be mainly made up of French players, Germans clubs of Germans, and so on.

The Court refused to accept this. In Walrave the Court had cautioned that any restriction on the scope of EU law must ‘remain limited to its proper objective’87 and it repeated precisely this point in Bosman8 The Court’s thematic concern is not to open up an unjustifiably large space for the expression of sporting autonomy in contradiction of the orthodox norms of EU law. And in Bosman the Court decided that sport was asking for too much. The Court refused to accept that the permissive approach under EU law taken to the composition of international teams should be extended to the composition of club sides. It pointed out that the application of the nationality clauses was so broad as to apply to ‘the essence of the activity of professional players’, and that accordingly their acceptance would be to deprive Article 48 of its practical effect and to eliminate the fundamental right of free access to employment conferred by the Treaty.89 The Court’s view was, in short, that sport is not special enough to make such an exorbitant claim to autonomy.

At bottom, the Court refused to accept that a link based on nationality was in any sense inherent to the structure of club football. No rule restricts clubs to a choice of players from their own region, town, or locality. And, the Court concluded, a club’s links with the Member State in which it is established are no more inherent in its sporting activity than its links with its region, town, or locality.90 The Court added that clubs qualify to participate in international competitions on the basis of success achieved in national competitions, without any particular significance being attached to the nationality of their players.91

The Court is probably right, although more detailed assessment of the extent to which sport’s special character might justify origin-based rules governing the selection of players is reserved for Chapter 8. The broader thematic point which is of direct relevance to this chapter is that in interpreting and applying EU free movement and anti-discrimination laws, the Court was required to fashion its own view of the character of football, in particular club football, against an entirely barren Treaty background. The Court, exploring the scope and limits of justified trade barriers, is [1] [2] [3] [4]

forced to behave in a creative manner. In his Opinion in Bosman, Advocate General Lenz had been more flowery. He reached the conclusion that supporters are primarily attached to their club rather than the background of individual players by remembering players who had been especially popular when playing in a country that was not their own: Petar Radenkovic, a charismatic Yugoslavian goalkeeper who played for TSV I860 Munchen in the 1960s, English international Kevin Keegan at Hamburger SV in the late 1970s and, more recently, Eric Cantona, a Frenchman at Manchester United, and Jurgen Klinsmann, a German at Tottenham Hotspur. There was a hint here of the robust and very personal approach taken by Advocate General Warner in Walrave and Koch, when he simply noted that the permissibility of national sporting teams was no more than a simple matter of common sense. Some Advocates General are very creative.

Three other arguments in support of the rules requiring nationality discrimination in club football were advanced. Each was crisply rejected.

First, it was argued that the clauses were necessary to create a sufficient pool of national players to supply adequate resources for the international representative teams.[5]2 The Court responded that international representative teams are composed of players having the relevant nationality, but that they are not confined to players registered to play for clubs in that country. This means that a wider pool of players available for selection for the international side already exists. Moreover, rules set and enforced by governing bodies require the release of such players to appear for their country’s international representative team in certain matches.93 The Court added that even if free movement of workers within the EU has the consequence that the chances of workers, including footballers, to find employment within their own Member State are reduced as a result of competition from migrants, the other side of that same coin is that they are able to enjoy the increased opportunity to travel across borders and to find work in every other Member Stated4

Second, the rules were defended as a means to help maintain a competitive balance between clubs by preventing the richest clubs from acquiring the services of the best players.95 To which the response could simply but plausibly have been: ‘No they do not, they ensure precisely that happens!’ The Court was slightly less curt, though still dismissive of the claim, adding that the rules in any event were not sufficient to achieve the aim of maintaining a competitive balance, since even if they limited the access of the richest clubs to the best foreign players, they did not limit the possibility for such clubs to recruit the best national players.96

Finally, UEFA pointed out that the ‘3 plus 2’ rule had been drawn up in collaboration with the Commission^7 This was perfectly true. The rule was widely known as the ‘Bangemann compromise’, after Martin Bangemann, the Commissioner responsible for internal market affairs at the time it was agreed, in 1991, to offer

UEFA an informal green light.[6] [7] It was, in an unappealing anachronism, described as a ‘gentlemen’s agreement’.99 Protests, led in particular by a Dutch MEP, James Janssen van Raay, who had a strong track record in criticizing the stringencies of the lex sportiva in Europe in general[8] [9] [10] and who now turned his fire on this legally dubious concession,ioi had been loud and, the Court now confirmed, they had been entirely justified. The Commission has no authority to validate a violation of EU free movement law. 102 So this background was of no assistance to football’s governing bodies. Put another way, they had been politically astute enough to extract a concession to their autonomy which protected the lex sportiva from the Commission, but they could not make that stick legally before the Court. This emphasizes still further the scale of Bosman’s victory: he was cracking open a cartel that included not only governing bodies and football clubs, but also the Commission itself.

  • [1] Bosman (n 23) para 122 . 86 ibid para 123. 87 Walrave and Koch (n 1) para 9.
  • [2] 88 Bosman (n 23) paras 76 and 127: although in fact the Court cites Case 13/76 Dona (n 19) rather
  • [3] than Case 36/74 Walrave and Koch (n 1) in making this point.
  • [4] 89 Bosman (n 23) paras 128—29. 90 ibid para 131.
  • [5] 2 ibid para 124. 93 ibid para 133. Ch 10.7 covers player release rules. 94 Bosman (n 23) para 134. Ch 8.6 explains why this misses the point, though it is not there arguedthat the outcome of the case should be different. 95 Bosman (n 23) para 125. 96 ibid para 135.
  • [6] The Commission’s position is examined in P Karpenstein, ‘Der Zugang von Auslandern zumBerufsfussball innerhalb der EG’; and G Renz, ‘Freizugigkeit von Berufsfussballspielern innerhalb derEG’ in M Will (ed), Sportrecht in Europa (CF Muller Juristischer Verlag 1993).
  • [7] eg Commission Press Release IP/95/411, para XII accessed 29 November 2016.
  • [8] He was Rapporteur for a critical report on restrictions on the freedom of movement of professional footballers—‘a modern form of serfdom’, para 9—drawn up and published in 1989 on behalfof the Parliament’s Committee on Legal Affairs and Citizens’ Rights, Document A 2-415/88, 1988/89 [1989] OJ C120/25.
  • [9] B3-1695/91, European Parliament, The Week, 18—22 November 1991.
  • [10] Bosman (n 23) para 136.
 
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