The Olivier Bernard Case: How, if at all, to Fix Compensation for Training Young Players?
The list of sports-related judgments in EU law was extended in March 2010. The decision of the Court of Justice of the European Union (CJEU – as it has been known since the entry into force of the Lisbon Treaty) in Olympique Lyonnais v Olivier Bernard and Newcastle United deals with payment of compensation in circumstances where a club that has invested in training young players finds that an emerging star wishes to try his luck elsewhere. Against the background of the EU Treaty provisions governing free movement of workers the Court confirms that such restrictions on player mobility may be compatible with EU law – but the particular French rules challenged by Bernard are not. The judgment therefore accepts that sport is ‘special’, for such arrangements for compensating training would not be found in normal industries, while it uses EU law to confine the space allowed to sporting bodies in shaping their preferred system. But plenty of open questions bedevil identification of precisely what measure of compensation is allowed under EU law, and there may yet emerge frictions between the demands of EU law and the international transfer system painstakingly renovated by football’s governing bodies in recent years. The judgment in Bernard is also notable as the first occasion on which the Court has made reference to the new provisions on sport introduced by the Treaty of Lisbon with effect from 1 December 2009. The judgment suggests that Lisbon will not be used by the Court as a basis to adjust its long-standing approach to the subjection of sport to the legal rules of the internal market.
KeywordsProfessional Sport Lisbon Treaty Young Player Educational Function Contractual Stability
- Bakker M (2008) The training compensation system. ISLJ 2008(1–2)29–36Google Scholar
- Dabscheck B (2009) Being punitive: the Court of Arbitration for Sport overturns Webster. ISLJ 2009(3–4):20–28Google Scholar
- Dimitrakopoulos DG (2006) More than a market? The regulation of sport in the EU. Government and Opposition 41:561–580Google Scholar
- Drolet JC (2009) Extra time: are the new FIFA Transfer Rules doomed?, in Gardiner S, Parrish R and Siekmann RCR, eds, EU, sport, law and policy, The Hague, T.M.C. Asser Press, Ch. 10, 167–190Google Scholar
- Gardiner S and Welch R (2007) The contractual dynamics of team stability versus player mobility: who rules “the beautiful game”? ESLJ 5 :1–14, available via http://www2.warwick.ac.uk/fac/soc/law/elj/eslj/.
- Parrish R and Miettinen S (2007) The sporting exception in European law, The Hague: T.M.C. Asser Press.Google Scholar
- Szyszczak E (2007) Is Sport special? In Bogusz B, Cygan A and Szyszczak E, eds, The regulation of sport in the European Union, Cheltenham: Edward Elgar Publishing, Ch. 1, 3–23.Google Scholar
- Van den Bogaert S and Vermeersch A (2006) Sport and the EC Treaty: a tale of uneasy bedfellows. ELRev 31:821–840Google Scholar
- Weatherill S (2007) On overlapping legal orders: what is the ‘purely sporting rule’? In Bogusz B, Cygan A, and Szyszczak E, eds., The regulation of sport in the European Union, Cheltenham: Edward Elgar Publishing, Ch. 3, 48–73Google Scholar
- Weatherill S (2012) EU Sports Law: The effect of the Lisbon Treaty. In Biondi A, Eeckhout P and Ripley S, eds., EU law after Lisbon, Oxford: Oxford University Press, Ch. 19, 403–420Google Scholar