The Transfer System

The Transfer System—Collective Plus Individual

A transfer system exists in several sports, but football’s version is by far the most high-profile, longest-established, and the one which involves the largest amount of money. Different versions have existed at different times, but the basic idea holds that an athlete in a sport that operates a transfer system does not have a choice between employers which is determined exclusively by the law of contract. A transfer system provides that where an athlete wishes to change employer it will be necessary to comply with the collectively agreed and enforced rules of the sport, which typically involves payment of a fee by the buying club to the selling club in return for the transfer of the athlete’s registration as an eligible player by the sport’s governing body. The normal employee—of a bank, of a supermarket, of a University—may bring a contract of employment to an end in accordance with its terms or, if it is limited in time, simply let it expire and then conclude a contract with a new employer, or may choose to break the contract with the first employer and sign a new one with a preferred replacement and face whatever consequences are dictated by the employment law of the jurisdiction applicable to the contract. Not so the athlete in a sport with a transfer system. He or she faces extra collectively imposed restraints on his or her freedom. Whatever may be the position as a matter of contract law and employment law, he or she will be required to meet the stipulations imposed by the transfer system on pain of sanction, which may even result in a suspension from playing if the transfer system is disregarded. Sportsmen and sportswomen are not treated as normal employees. They are more tightly restrained. Sport is special.

In both Bosman and Olympique Lyonnais v Olivier Bernard, decided in 1995 and 2010 respectively,[1] the Court of Justice ruled that aspects of the transfer system in football were not compatible with EU law. They were condemned as unlawful restrictions on the free movement of workers within the internal market. But in both rulings the Court openly embraced sport’s special and legitimate concerns, and it clearly indicated that some sort of transfer system, though not the one at stake in the litigation, could survive scrutiny pursuant to EU law. So the Court accepts that sport is special, and the key question is only how special: which, for athletes as workers, means that the key question arising under EU law asks how much less favourably they may be treated than ordinary employees. That is the inquiry pursued in this chapter.

  • [1] Case C-415/93 Union royale belge des societes de football association ASBL v Jean-Marc Bosman[1995] ECR I-4921; Case C-325/08 Olympique Lyonnais v Olivier Bernard, Newcastle United[2010] I-2177.
 
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