Bosman—the Aftermath

Assessment of the detail of the Court’s analysis deserves treatment in separate chapters dealing with the transfer system (Chapter 9) and nationality rules (Chapter 8). As will be elaborated, there are holes in the Court’s reasoning in Bosman on both points: in particular, the Court’s treatment of the transfer system is too generous, its treatment of the nationality rules not generous enough. However, for present purposes, the most important point is structural. The Court was implacably opposed to permitting sporting practices any autonomy in principle from the scope of application of EU law. But it was not opposed to taking account of the claim that ‘sport is special’ in considering how to interpret and apply EU internal market law. Quite the reverse! Article 165 TFEU today asserts that sport possesses a ‘specific nature’, and that theme is plainly visible in Bosman. The Court was open in its embrace of the legitimate aims of sport in principle—its point was that it did not consider them properly advanced by the particular transfer system of which Bosman was the victim. And the Court did not refuse in principle to consider whether nationality discrimination might be permitted in club football—but, after examining the absence of attachment of club football to the nationality of individual players, it decided it should not be.

Bosman was, however, greeted with dismay by governing bodies in sport. Newspaper reports on the day after the publication of Mr Lenz’s Opinion in September 1995 were apocalyptic. ‘This is sending lesser clubs to the wall’, the owner of Wimbledon was quoted as saying in literally front page news.[1] [2] [3] [4] [5] Elsewhere it was reported that ‘A Football League spokesman claimed that “75 per cent” of its players could lose their jobs’.io4 By December, the mood was no less dismayed. The day after the Court gave judgment the President of UEFA, Lennart Johansson, described it as ‘an attack on football, the implications of which we do not know’.io5 ‘Football was plunged into chaos .. .’ю6

At best such remarks are disingenuous. At worst they are outright misleading. In its ruling in Bosman the Court recorded that:

UEFA argued, inter alia, that the Community authorities have always respected the autonomy of sport, that it is extremely difficult to distinguish between the economic and the sporting aspects of football and that a decision of the Court concerning the situation of professional players might call in question the organization of football as a whole. For that reason, even if Article 48 of the Treaty were to apply to professional players, a degree of flexibility would be essential because of the particular nature of the sport.Ю7

The reality is that UEFA were rewarded with exactly this ‘flexibility’ in the Court’s ruling! Sporting rules fall readily within the scope of application of the Treaty and are therefore put to the test. But EU internal market law dictates only what may not be done, not what shall be done. So there is space for sporting bodies to find other ways to protect and promote their interests—provided always that they comply with EU law. EU free movement law, then, is an agent for change, but it does not impose a particular system on those subject to its requirements. And the Court showed generous flexibility to the claim that ‘sport is special’. The transfer system and the nationality rules attacked in the case itself did not pass muster, but the Court was clearly receptive to adapted rules that would survive review pursuant to EU law because of the sporting context, when they would not be tolerated in a ‘normal’ industry. As Chapter 9 shows, the transfer system lives on, but shorn of its objectionable application to out-of-contract players.

It is striking how the protests of football’s governing bodies in Bosman closely resemble the pleas for sporting autonomy made before, in, and after the Eastham case before the English courts over thirty years® The claim made in that case in favour of a transfer system was that ‘If a player could do just as he liked at the end of the football season, the wealthier clubs would at once snap up the best players’:™9 this may be summarized as an argument for the transfer system to serve as a means to achieve balance in sport. It was, moreover, argued that ‘All professional football leagues elsewhere in the world have the combined retention and transfer system or one that amounts to it, which shows that it has the unqualified approval of those best fitted to judge’:110 this is an argument rooted in relative expertise. The submission that ‘In considering the system as a whole, it should be borne in mind that the present system, based on a stable league, does secure benefits to players which a smaller organisation might not be able to secure’m is simply a dogged refusal to imagine that the sporting world could ever be different. The thematic core of the defence of the transfer system advanced in Eastham is concern to allow sport autonomy from legal regulation: not only that theme but indeed even similar detailed arguments are recycled in Bosman. The outcomes of the two cases in detail are not precisely the same, because restraint of trade under the English common law does not exactly match EU internal market law, but overall both rulings exhibit a refusal to treat football as so special that it can claim to maintain a system as restrictive and burdensome as that at stake in the cases.

This is in a sense merely ancient history. But it helps to emphasize how significant is the shift caused by Article 165 TFEU, the innovation of the Lisbon Treaty with effect from 2009. It represents an abandonment of a refusal by sporting bodies even to entertain the legitimacy of the EU’s role, and instead shows that sporting bodies have been induced to accept a strategy of inclusion as far as engagement with the EU is concerned. This story, and the more general shift of (some) sporting bodies to seek a more cooperative relationship with the Commission (in particular) is addressed directly in Chapter 6.

Meanwhile Jean-Marc Bosman had won his case. At the time of the judgment he was playing low-level football at the relatively advanced age (for a football player) of 31, having endured a series of problems caused by his plight.n2 In 1998 he received a payment from the Belgian Football Union,n3 but in 2015, on the twentieth anniversary of the ruling which will bear his name forever, he reflected ruefully that ‘I earn nothing now ... in the past I got a lot of promises but never received anything’.n4 For him it was largely a hollow victory. His ‘success’ alerted potential litigants to the costs of challenging the game’s structure. To this extent Bosman confirmed that sports governing bodies, while not immune from legal challenge, are unusually powerful entities wielding global influence. They are in practice frequently able to operate on the assumption that they enjoy immunity from challenge. Sport is extraordinarily resilient to change.

But that obstinacy is much less sturdy than it was before Bosman. Bosman is one of the causes of the ‘juridification’ of EU sports law. It is certainly not the only one. Beginning in the 1980s and continuing apace today, technological change and governmental deregulation has transformed the broadcasting sector. Increasing demand for rights to show high-profile events has caused money to cascade into

no ibid 424. “I ibid 425.

  • 112 ‘A Revolutionary Rebuilds His Life’ The Independent on Sunday (London, 18 February 1996) 24. из ‘Bosman Action Settled at ?312,000’ The Independent (London, 23 December 1998) 20.
  • 114 ‘Jean-Marc Bosman: I think I Did Something Good—I Gave Players Rights’ The Guardian (London, 12 December 2015) accessed 29 November 2016.

professional sport in Europe as never before. The creation of the English Premier League and the conversion of the European Cup into the Champions League, which both occurred in 1992, both pre-date Bosman. Football and Formula 1 are the most sought-after sports but, as a glance at today’s television schedules shows, these are by no means the only ones. Law is part of the changing landscape. The increasing commercial significance—and often astonishing profitability—of sporting events brought with it a rising inability to present sport as something pure and noble that lies beyond legal control. Sports bodies could be challenged. They did not enjoy autonomy in principle from the application of EU law. They had to seek their protection within the interpretation of EU law. Bosman provided the vocabulary. If we looked at this today in the light of the Lisbon Treaty we might readily argue that the Court in Bosman was determining what falls within the notion of ‘the specific nature of sport’, as provided for in Article 165(1) TFEU. But this would be presentational, and would cause no change in substance. The Lisbon Treaty offers a particular twist in the detailed legal formula but all it does is (re-)frame longstanding questions rather than provide concrete answers to the questions ‘Is sport special?’ and ‘If so, how special?’ Bosman, most of all, showed clearly that the Court would not simply take the claims of sporting bodies at face value. EU sports law was taking shape, and it would not simply be a rubber-stamping of the lex sportiva.

  • [1] ‘Ruling Brings Soccer Chaos’ The Guardian (London, 21 September 1995) 1.
  • [2] ‘Smaller Clubs Threatened by Transfer Ruling’ The Independent (London, 21 September 1995) 28.
  • [3] ‘UEFA Vows to Fight after Illegal Transfers Ruling’ The Times (London, 16 December 1995) 44.
  • [4] ‘Chaos after Bosman Ruling’ The Guardian (London, 16 December 1995) 20.
  • [5] Bosman (n 23) para 71. ю8 Eastham (n 29). Ш9 ibid 424.
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