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Bosman and Athlete Welfare: The Sports Law Approach, the Social Policy Approach, and the EU Guidelines on Dual Careers

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Abstract

This paper pleads for revisiting the ECJ’s 1995 Bosman ruling by jointly using a sports law as well as a social welfare approach, which will yield partly dissimilar yet potentially converging results regarding the precariousness of sports employment and the socio-economic as well as psycho-social vulnerability of players and athletes. The paper further advocates for using the 2012 EU Guidelines on Dual Careers as a benchmark for soft-law based initiatives aimed at better protecting players and athletes against the social risks associated with sporting careers. Finally, the paper will demonstrate the need for an interdisciplinary discourse on the challenges identified, involving legal, social science, social policy, social work as well as genuine sport policy perspectives.

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Notes

  1. Case C-415/93.

  2. Boyes (2012).

  3. Internationale Wettkampfordnung für Skibob (undated), cit. Pfister (1991), p. 173: "Juristische Haarspalterei, öffentliche Kritik oder nachträgliche unangebrachte Äußerungen über die getroffene Entscheidung oder Maßnahme [sind] unsportlich und haben zu unterbleiben. […] Ein ziviles oder strafrechtliches Einschreiten ist […] aus sportlichen Gründen untersagt." = 'Legal hairsplitting, public criticism as well as subsequent inappropriate remarks related to a decision made or a measure taken is unsportive and must not take place. […] Civil or criminal litigation is […] forbidden for sportive reasons'.

  4. European Commission (2012).

  5. European Commission (2012).

  6. E.g. Anderson (2010), Boyes (2012, 2013), Duval and Van Rompuy (2016), Gardiner and Welch (2011), Ilešič (2010), Kornbeck (2015), Meier (2004), Van den Bogaert (2013) and Weatherill (2010).

  7. Bosman, Case C-415/93, at 72.

  8. Bosman, Case C-415/93, at 78.

  9. Bosman, Case C-415/93, at 81.

  10. Bosman, Case C-415/93, A.G. Lenz, at 233.

  11. See Van Romuy (2012), including the comprehensive case study on sport.

  12. Boyes (2012, p. 88).

  13. Gardiner and Welch (2011, p. 828).

  14. Ilešič (2010, p. 478).

  15. Weatherill (2010, p. 480).

  16. Abrams (2009, p. 79).

  17. Abrams (2009, p. 84s).

  18. Boyes (2013, p. 79): "due principally to a calamitous misjudgement by counsel for Kingaby, the claim failed having been premised upon an allegation of malicious behaviour on the part of Aston Villa, and not challenging directly the validity of the retain and transfer system as being in restraint of trade. Had it not been for this error, it could well have been that matters would have been settled half a century before Eastham. As it was, it was not until 1961, against the background of threatened strike action, that the maximum wage was finally abolished and the players reached a settlement with the football authorities on payments to out of contract players retained by clubs. It was against this turbulent background that the Eastham v Newcastle United litigation arose".

  19. Van den Bogaert (2013, pp. 80–91): "The questions referred to the Court of Justice of the European Union (CJEU) by the Court of Appeal, Liège for a preliminary ruling were as follows: Articles 48, 85 and 86 of the Treaty of Rome of 25 March 1957 to be interpreted as (i) prohibiting a football club from requiring and receiving payment of a sum of money upon the engagement of one of its players who has come to the end of his contract by a new employing club; (ii) prohibiting the national and international sporting associations or federations from including in their respective regulations provisions restricting access of foreign players from the European Community to the competitions which they organise? In answer, the CJEU held that Article 48 of the EEC Treaty (free movement of workers) precluded the application of rules laid down by sporting associations, under which a professional footballer who is a national of one Member State may not, on the expiry of his contract with a club, be employed by a club of another Member State unless the latter club has paid to the former club a transfer, training or development fee. It also held that Article 48 of the EEC Treaty precluded the application of rules laid down by sporting associations under which, in matches in competitions which they organise, football clubs may field only a limited number of professional players who are nationals of other Member States. The impact that the Bosman judgment has had on the legal, administrative and financial landscape of professional football in Europe has been profound and is accounted for in this chapter with reference inter alia to recent case law".

  20. Derlén and Lindholm (2014, pp. 667–687).

  21. Kornbeck (2015).

  22. House of Commons, Friday 27 October 1995, Column 1238, 11.22 am, http://www.publications.parliament.uk/pa/cm199495/cmhansrd/1995-10-27/Debate-3.html.

  23. Internationale Wettkampfordnung für Skibob (undated), cit. Pfister (1991, p. 173) (supra).

  24. Case C-36/74.

  25. Anderson (2010, sec. 8.24).

  26. Derlén and Lindholm (2014, p. 670).

  27. Case 120/78.

  28. Case 26/62.

  29. Derlén and Lindholm (2014, p. 670).

  30. Ibid., p. 671.

  31. Case 8/74.

  32. Derlén and Lindholm (2014, p. 678).

  33. Van den Bogaert (2013, p. 94): ‘When, in 1990, Jean-Marc Bosman commenced legal proceedings to challenge the rules that prevented him from freely contracting with the club of his choice, even though he was no longer contractually bound to his previous club, he exposed himself to heavy pressure from the football establishment to drop the case or at least come to a settlement out of court. He had to resist various kinds of cunning legal manoeuvres to slow down the process of the case before the various courts. Had it not been for his perseverance, stubbornness and dogged determination to defy the football system, there would simply not have been a Bosman case at all. Who knows how long the transfer rules and nationality clauses would have continued to exist without Bosman? Ultimately, one player thus managed to defeat the whole football establishment, a story reminiscent of David’s mythical victory over Goliath. The Court’s ruling in Bosman’s favour clearly conveys the message that citizen’s rights are to be taken seriously under EU law. But then again, there is also a darker side: to vindicate his rights, Bosman basically had to sacrifice his career. One career for all players’ freedom at the expiry of contracts was a high price to pay’.

  34. Slater (2015): “No longer would a player from the European Union have their opportunities in the single market curtailed by rules limiting the number of foreigners clubs could field.

    But for this softly spoken 51 year old, it was a case that almost ruined him.

    […]

    ‘There have been real problems but I am feeling much better now,’ said Bosman when I asked him how he was after a spell in prison, bankruptcy and a long battle with alcoholism.

    ‘I've had medical and psychological care and I also have blood samples taken on a regular basis.

    ‘There have been difficulties and my financial situation is not easy but life has started over. I have regained strength and feel motivated.

    ‘It has not been easy to find work after the ruling but I am not complaining. The tunnel is nearing its end.’

    He entered that tunnel in 1990 when his contract with RFC Liege expired. With the club in financial trouble they wanted the midfielder to sign a new deal on a quarter of his former salary.

    Yet when Dunkerque, across the border in France, wanted to buy him, Liege demanded four times what they'd paid for him in the first place.

    ‘It was illogical,’ said Bosman, explaining the moment he decided to become a "freedom fighter".

    His lawyer thought it would take 2 weeks. It took 5 years; a period that should have been the best years of a decent career.

    Banned in Belgium, Bosman moved to a second division club in France, only for them to go bust. Other clubs told him they would like to sign him but could not because they already had three foreigners”.

  35. Huggins (2004, pp. 128–129).

  36. Sanders (2010, p. 120).

  37. Slater (2015).

  38. See the statement by Mr Joseph Ashton, M.P. (supra).

  39. Official website (European Commission): Sectoral social dialogue—Professional football. http://ec.europa.eu/social/main.jsp?catId=480&intPageId=1848&langId=en.

  40. Meier (2004), cit. Branco Martins (2014, p. 155).

  41. See e.g. Social Dialogue In Active Leisure. http://www.ehfa-programmes.eu/node/12.

  42. Parrish (2011, p. 224).

  43. For an overview, see e.g. Park et al. (2013).

  44. Lavallee et al. (1997).

  45. Roderick (2014).

  46. Roderick and Gibbons (2014).

  47. Roderick (2012).

  48. Norton and Olds (2001).

  49. Sedeaud et al. (2014.

  50. Aquilina (2013).

  51. Stambulova et al. (2007).

  52. Cf. BFMTV (2011).

  53. European Commission (2012).

  54. European Commission (2007, p. 6).

  55. E.g. Cosh et al. (2013), Henry (2013), Lupo et al. (2015) and Platts and Smith (2009).

  56. Aquilina and Henry (2010).

  57. European Council (2008, p. 21, Annnex 5).

  58. European Commission (2012).

  59. European Commission (2012, p. 35).

  60. Parrish (2011, p. 213): ‘The EU judiciary may have provoked a watershed change in European professional sports, thereby partially emancipating footballers in the role of workers. Yet, even today, labour contracts in football still cannot be considered ‘normal’, since players are equally bound by the rules of federations/governing bodies’.

  61. Parrish (2011, p. 224).

ECJ/CJEU Case Law

  • NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration. Case 26–62. [5 February 1963]. English special edition 1963–1. ECLI:EU:C:1963:1.

  • Procureur du Roi v Benoît and Gustave Dassonville. Case 8–74. [11 July 1974]. ECR 1974-00837. ECLI:EU:C:1974:82.

  • B.N.O. Walrave and L.J.N. Koch v Association Union cycliste internationale, Koninklijke Nederlandsche Wielren Unie and Federación Española Ciclismo. Case 36–74. [12 December 1974]. ECR 1974-01405. ECLI:EU:C:1974:140.

  • Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein. Case 120/78. [20 February 1979]. ECR 1979-00649. ECLI:EU:C:1979:42.

  • Union royale belge des sociétés de football association ASBL v Jean-Marc Bosman, Royal club liégeois SA v Jean-Marc Bosman and others and Union des associations européennes de football (UEFA) v Jean-Marc Bosman. Case C-415/93. [15 December 1995]. ECR 1995 I-04921. ECLI:EU:C:1995:463.

US Case Law

  • Professional Baseball Clubs, 66 LA 101 [Seitz 1975] [23 December 1975]. [cit. Abrams, 2009].

  • Kansas City Royals Baseball Corp. v. Major League Baseball Players Ass’n, 409 F. Supp. 233, 261 (W.D. Mo. 1976) aff’d, 532 F.2d 615 (8th Cir. 1976) [3 February 1976]. [cit. Abrams, 2009].

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  1. Jacob Kornbeck

    Present address: Youth Unit, European Commission, Brussels, Belgium

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  1. German Sport University, Cologne, Germany

    Jacob Kornbeck

  2. Audencia Business School, Nantes, Paris, France

    Jacob Kornbeck

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Kornbeck, J. Bosman and Athlete Welfare: The Sports Law Approach, the Social Policy Approach, and the EU Guidelines on Dual Careers. Liverpool Law Rev 38, 307–323 (2017). https://doi.org/10.1007/s10991-017-9203-9

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