Abstract
Bosman is the first occasion on which the fundamental patterns of a particular sport have been conclusively ruled incompatible with Community law by the European Court. Bosman’s legal success will change football in particular and sport in general, but the ruling is also of major significance in the evolution of EC law. The purpose of this annotation is to explore the significance of the judgment to the general development of the EC legal order, and to outline some of the legal issues left unresolved by the Court which may generate litigation in the future. The author has largely resisted the temptation to immerse himself in the eccentric passions and statistical oddities that surround football in Europe, although some reference to the structure and the significance of the industry is provided where necessary to ensure the intelligibility of the legal analysis.
Case C-415/93, Union Royale Belge des Sociétés de Football Association ASBL v. Jean-Marc Bosman; Royal Club Liégois SA v. Jean-Marc Bosman, SA d’Economie Mixte Sportive de l’Union Sportive du Littoral de Dunkerque, Union Royale Belge des Sociétés de Football Association ASBL, Union des Associations Européennes de Football; Union des Associations Européennes de Football v. Jean-Marc Bosman. Article 177 reference by the Cour d’Appel, Liège, on the interpretation of Articles 48, 85 and 86 EC. Judgment of the European Court of Justice of 15 December 1995.
First published in 33 Common Market Law Review (1996), p. 991–1033.
This is a preview of subscription content, log in via an institution.
Buying options
Tax calculation will be finalised at checkout
Purchases are for personal use only
Learn about institutional subscriptionsNotes
- 1.
- 2.
Janssen Van Raay report, PE DOC A2-415/88; Larive report, PE DOC A3-0326/94. The views expressed in both reports are close to the approach of the Court in Bosman.
- 3.
Cf. Nafziger 1992, 489, which examines inter alia the Olympic movement and litigation arising out of the ‘America's Cup’ yacht race, and Nafziger, 130, which considers inter alia litigation involving the runner ‘Butch’ Reynolds and ice-skater Tonya Harding.
- 4.
Case 43/75, Defrenne v. SABENA, [1976] ECR 455.
- 5.
A-G Lenz's Opinion, which is splendidly well-informed about the football industry, contains an extensive and detailed examination. For a useful collection of materials and some analysis, see Blanpain and Inston 1996.
- 6.
There is very little women's professional football in Europe, but the Bosman ruling is plainly applicable to it.
- 7.
Paras. 75, 101.
- 8.
The situation in the UK – four football nationalities, one nationality at law – is inevitably odd.
- 9.
- 10.
Assimilated players have played in the country of the relevant association for an uninterrupted period of five years including three years as a junior.
- 11.
I refrain from an extended treatment of this issue; the impact may be measured by reference to the 1984 Liverpool side, the last British success in the European Cup, the leading club competition, which contained (including substitutes) international players from Scotland (4), Ireland (3), England (3). Wales (1). Zimbabwe (1) and one non-international. The introduction of restrictions may be regarded as no more than the corollary of the generosity of the world Football community in allowing the UK, a single state, uniquely to house four associations. This does not occur in e.g., the Olympic Games.
- 12.
‘One of the reasons that we got as much as £ 7 million for Andy Cole when he went to Manchester United was because he was English’, Sir John Hall, Chairman of Newcastle United, Independent on Sunday, 10 December 1995, p. 30. A similar phenomenon could be observed in Scotland and, to a lesser extent because of the less radical break with history, in continental Europe too.
- 13.
Remarkably, in the light of his tenacity in the courts, the main reason for his declining fortunes on the football field was a perceived lack of aggression!
- 14.
Para. 33.
- 15.
Case C-117/91, Jean-Marc Bosman v. Commission, [1991] ECR I-4837; an application for interim measures was rejected in Case C-117/91R, [1991] ECR I-3353.
- 16.
Case 36/71 [1974] ECR 1405 and Case 13/76 [1976] ECR 1333 respectively.
- 17.
Para. 205 of the Opinion, his emphasis. See Weatherill 1996, 887–908.
- 18.
OJ 1992, L 326/31, distribution of package tours for the 1990 World Cup incompatible with Art. 85; cf. also no dispute on application in principle of Art. 85 in Case T-46/92, Scottish Football Association v. Commission, [1994] ECR II-1039.
- 19.
But see below, Sect. 4.5.1.1, on the interdependence of clubs.
- 20.
Supra note 16.
- 21.
Paras. 70 and 72, respectively.
- 22.
Cf. overview by Zuleeg 1993.
- 23.
Para. 77.
- 24.
It ruled that the direct effect of Art. 48 cannot be relied upon in support of claims relating to a fee in respect of transfer, training or development which has already been paid on, or is still payable under an obligation which arose before, the date of the judgment, except by those who have brought court proceedings or raised an equivalent claim under the applicable national law before that date.
- 25.
Para. 82.
- 26.
Para. 97.
- 27.
Case 81/87 [1988] ECR 5483.
- 28.
Joined Cases C-267/91 & C-268/91 [1993] ECR I-6097.
- 29.
Case C-384/93 [1995] ECR I -1141.
- 30.
These broader issues are addressed in Weatherill 1996, 887–908.
- 31.
Para. 104.
- 32.
Case C-19/92 [1993] ECR I-1663 and Case C-55/94 judgment of 30 Nov. 1995 nyr, respectively. [not yet reported at the time of writing; later reported [1995] ECR I-4165; Ed.].
- 33.
Para. 105.
- 34.
Para. 106.
- 35.
Para. 109.
- 36.
Para. 110.
- 37.
Paras. 55–67.
- 38.
Case C-83/91, [1992] ECR I-4871.
- 39.
E.g., Case C-143/94, Furlanis v. ANAS, judgment of 26 October 1995, nyr. [at the time of writing; later reported [1995] ECR I-5633; Ed.].
- 40.
- 41.
The most celebrated example is VfB Stuttgart's eventual elimination from the 1992–1993 European Cup by Leeds United, even though the German side won the tie on the pitch. The extra ‘foreigner’ in that instance was, however, not an EU national, so an EC law issue did not arise, subject to the argument presented below at Sect. 4.5.2.2. A-G Lenz mentions domestic matches in which penalties imposed for playing too many EU nationals were accepted by clubs.
- 42.
Cf. Sect. 4.4.1 supra. Even the ban on English clubs' participation in (lucrative) European club competition imposed in the wake of the Heysel Stadium disaster in 1985 stimulated no challenge based on EC law, even though it was surely disproportionate; cf. Evans 1986, 510.
- 43.
Walrave and Koch v. UCI and Donà v. Mantero, cited supra note 16.
- 44.
Para. 76.
- 45.
A-G Lenz's approach, in contrast with that of the Court, is in line with this orthodox reading of Walrave and Koch v. UCI.
- 46.
Para. 76.
- 47.
Para. 131.
- 48.
Para. 132. This approach conforms to that proposed by the present author, supra note 1, 60–63; cf. also Renz 1993. The more permissive approach to restrictions in club competitions suggested by A-G Trabucchi in Donà v. Mantero, supra note 16, seems to be decisively rejected.
- 49.
Quaere whether Art. 48 would apply to an individual club which chose only players of a particular nationality. The Court has consistently referred to Art. 48's role in regulating ‘collective’ labour regulation, and it is submitted that the application of Art. 48 to an individual club would go beyond what has previously been decided. It is submitted that such an extension should not be made. A supermarket can choose to sell only British goods without violating Art. 30: so too a club should be able to hire only British players without violating Art. 48. The analogy is admittedly not quite precise because Art. 48 catches collective private action, where Art. 30 does not, an unresolved anomaly. Moreover, one might submit that the personal nature of the Art. 48 right should dictate its deeper intrusion into private autonomy than occurs under Art. 30. Nevertheless, although the point remains finally unresolved, his submitted that private contractual autonomy should prevail where individual clubs' choices of players are concerned (subject to the possible application of domestic race equality laws). However, were an individual club held subject to Art. 48. it would presumably he able lawfully to discriminate only if it could go beyond showing a perceived commercial advantage showing from such discrimination (through attracting potential fans) and show instead that the origins of its players, unusually, were regarded as significant to the identity of the club – Yorkshire County Cricket Club's (now abandoned) policy of selecting only Yorkshire-born players might have provided an example. For a full discussion, including copious reference to academic writing, see Roth 1995, 1231 et seq.
- 50.
A-G Lenz looked at practice: the absence of any restrictions on foreign players in the Scottish league has not led to a shortage of players for the national side. He pointed out that an objection based on the poor performances of the Scottish national side over recent years did not carry weight in the tight of contemporaneously poor club performances. He added kindly that ‘no doubt this will change again one day’.
- 51.
According to A-G Lenz, even had the Commission formally exempted the industry's practices under Art. 85(3) EC (which he thought implausible in any event because of their disproportionately restrictive effect), this would not have overridden a violation of Art. 48. As explained, the Court did not consider the application of Art. 85.
- 52.
Para. 106.
- 53.
Although a small number of recent cases have been generous to public authorities. Contrast Case C-275/92, Schindler, [1994] ECR I-1039, Para. 61, where the Court explicitly allowed the State ‘latitude’ in its assessment of the means appropriate to achieve permitted ends in the context of the suppression of large scale lotteries; and cf. the result of Alpine Investments, supra note 29, where the Court did not rule the Dutch measures disproportionate even though other States, notably the UK, did not feel the need for a ban on ‘cold-calling’. For discussion of trends see O'Leary and Fernandez Martin 1995, 308.
- 54.
In November 1995 UEFA asked the Court that an inquiry be launched to obtain fuller information on the role played by transfer fees in financing small or medium sized football clubs, evidencing a desire to show how income redistribution within the game was based on the transfer system. The request was rejected on procedural grounds, having been made when the oral procedure was closed and in the absence of any special circumstances applied. It is no secret that UEFA's inaction was severely criticized by its EU members; e.g., Rick Parry, Chief Executive of the English Premier League, ‘[…] UEFA put in what was really a very rudimentary analysis to try and support the maintenance of the transfer system, which obviously did not impress’, proceedings of a seminar on the Bosman case held on 8 January 1996, published jointly by the FA Premier League and British Association for Sport and Law.
- 55.
Para. 110.
- 56.
- 57.
E.g.: ‘We have no lessons to learn from somebody who, in a manner of speaking, doesn't even know that a football is round’. F. Meulemans. Vice President of the Belgian FA, quoted in Blanpain and Inston 1996, 1.
- 58.
In fact, Mr Lenz mentions distribution throughout the game of proceeds from the ‘Champions League’, the most lucrative club tournament in Europe although he adds that club managements have not always behaved rationally. (Few football supporters would disagree.).
- 59.
- 60.
Probably any such arrangements would have to be notified to the Commission in pursuit of exemption according to Art. 85(3), although it might be possible to view the arrangements as simply a reflection of the unusual competitive structure of the football industry and therefore falling outside Art. 85 entirely and not requiring notification (perilous though such an approach would be in practice, for, if flawed, there would be no exemption and no immunity from fines). In any event A-G Lenz is firmly of the view that nothing in Art. 85 can detract from a breach of Art. 48; so grant of exemption under Art. 85(3) could not cure violation of Art. 48.
- 61.
It seems that the suggestion is derived from the French system.
- 62.
Para. 110.
- 63.
There is a fund of North American experience on which to draw, cf. supra note 56, although direct transplant is improbable since some aspects of regulation such as the ‘player draft’ (cf., e.g., Smith v. Pro Football Inc., 593 F.2d 1173) go far beyond anything envisaged in European football.
- 64.
Subject to comments supra note 49.
- 65.
A-G Lenz's view that an Art. 85(3) exemption cannot save a violation of Art. 48, supra note 365, also rules out the practical utility of the argument that nationality restrictions may be deserve exemption in order to preserve the viability of smaller national Leagues which would otherwise be plundered of all their leading players; cf. Weatherill 1989, 76-78. An argument is made ibid. 87–92 for a ‘softening’ of Art. 48 in cases where the Art. 85(3) conditions may be met by a labour practice, but this proposal seems to have found no favour with A-G Lenz.
- 66.
E.g., Glasgow Rangers in Scotland; football officials remained unpersuaded by the benefits, cf. Jim Farry, chief executive of the Scottish Football Association. quoted in The Times, 4 November 1996, p. 48, referring to Rangers: ‘The big-fish-in-a-wee-pool syndrome could rapidly become a wee fish in a big pool’ (wee = small).
- 67.
Which may reach beyond the 15 Member States: see Sect. 4.5.2.2 below. Peculiar though it may seem, rules requiring discrimination by British clubs between different types of Briton would not violate Art. 48, for this would exert an impact purely internal to one Member State.
- 68.
- 69.
‘At the moment no one's challenging our system. We hope it remains that way because it's an excellent one, without which many smaller clubs might not survive’, English Football Association spokesperson, The Independent, 6 March 1996, p. 24.
- 70.
One might ponder whether national judges might in practice be prompted by awareness that the cross-border transfer system has collapsed to adopt a more rigorous inquiry into the permissibility of domestic restrictions. The leading case in English law is Eastham v. Newcastle United FC [1964] Ch. 413; on the situation in Germany, Wertenbruch 1996, 91; and, for comparisons, see A-G Lenz's Opinion in Bosman.
- 71.
Para. 89, e.g., Case 175/78, R v. Saunders, [1979] ECR 1129.
- 72.
Cf. on Art. 30, Weatherill 1996.
- 73.
Cf. Case C-370/90, Surinder Singh, [1992] ECR I-4265; Case C-19/92, Dieter Kraus, supra note 32.
- 74.
The fact that the Scandinavian season runs through the summer, while the major Leagues in Europe operates on an August–May model, may offer an opportunity for planning such a scheme without any break in the player's availability.
- 75.
Cf. Case 39/86, Lair v. University of Hanover, [1988] ECR 3161; in connection with regulation of legal persons, Case C-23/93, TV 10 SA v. Commissariaat voor de Media, [1994] ECR I-4795, annotated by Wattel 1995, 1257. Cf. under Art. 30 EC, Case 229/83, Leclerc v. Au Blé Vert, [1985] ECR 1.
- 76.
The British anomaly persists; transfers between the English and Scottish leagues remain purely internal for EC law purposes.
- 77.
As A-G Lenz remarks, there is no difficulty in catching such labour-related agreements between employers under Art. 85; the difficult question of whether collective agreements between employers and employees fall within Art. 85 does not arise. Cf. Weatherill 1989, 68–73 and North American analogies, supra note 56.
- 78.
Cases 56 & 58/64, [1966] ECR 299.
- 79.
Case 26/76, Metro-SB-Grossmärkte GmbH & CO KG v. Commission, [1977] ECR 1875, Cf. also Case 22/78, Hugin v. Commission, [1979] ECR 1869, cited by A-G Lenz in Bosman.
- 80.
OJ 1988, L 284/41.
- 81.
Art. 4(1) Reg. 17/62.
- 82.
Cf. the Commission's inexplicit hint of a parallel between the proportionality test under Art. 36 and under Art. 85(3) in relation to permissibility of restrictions on World Cup ticket distribution for reasons of public safety, supra note 18.
- 83.
Another professional sport, perhaps cricket, rugby or ice hockey, might breed a litigant.
- 84.
Case 125/78, GEMA v. Commission, [1979] ECR 3173.
- 85.
Case C-37/92, BEUC and NCC v. Commission. [1994] ECR II-285. Cf. Case T-7/92, Asia Motor France v. Commission, [1993] ECR II-669; Case T-114/92, BEMIM v. Commission. [1995] ECR II-147; Case T-74/92, Ladbroke Racing v. Commission. [1995] ECR II-115; Case T-548/93, Ladbroke Racing v. Commission, [1995] ECR II-2565. Bosman's challenge to the Commission before the European Court, supra note 15, was not treated as a complaint of this type.
- 86.
OJ 1993, C 39/6.
- 87.
- 88.
‘[…] there is not normally a sufficient Community interest in examining a case when the plaintiff is able to secure adequate protection of his rights before the national courts’, Para. 15 of the 1993 Notice, supra note 86, citing Case T-24/90, supra note 87.
- 89.
In ‘Automec II’ itself and in Case T-114/92, BEMIM v. Commission, supra note 85.
- 90.
- 91.
Case T-114/92, supra note 85.
- 92.
Para. 138.
- 93.
Subject, perhaps, to Art. 85 arguments similar to those presented in Sect. 4.5.2.1 above relating to the distortion that flows from having a system applicable to some players but not to others.
- 94.
Case C-18/90, [1991] ECR I-199.
- 95.
E.g., Case 270/80, Polydor v. Harlequin Record Shops, [1982] ECR 329. The most remarkable example of this principle, albeit arising outside the sphere of litigation by an individual, is provided by Opinion 1/91, Opinion on the draft agreement establishing the EEA, [1991] ECR I-6079.
- 96.
Case C-12/86, [1987] ECR 3719.
- 97.
Case C-192/89, [1990] ECR I-3461. Both this decision and Kziber are criticized by Hailbronner 1995, 190, for underestimating the more limited ambitions of the Association Agreements in contrast with the EC Treaty.
- 98.
Cf. Peers 1996, 7.
- 99.
Cf. Cremona 1995, 87, especially 102 et seq.
- 100.
‘The simple answer for clubs is to extend the contracts of players they consider valuable, so that the out of contract situation never arises’, Chairman's Notes, p. 8 of match programme for A.F.C. Bournemouth v. Hull City, English League Division Two, 23 December 1995, i.e., eight days after the Bosman ruling.
- 101.
How could one cost an adequate replacement?
- 102.
In practice, these might be paid directly or indirectly by an eager buyer.
- 103.
English law, for example, would look to the distinction between liquidated damages and a penalty clause. A clause stipulating payment would have to be a genuine pre-estimate of the innocent party's likely losses, rather than a means of terrorizing the other party into compliance and unconnected with actual loss. This means that it would not be possible to re-introduce the vast transfer fees paid in the past under the guise of contractual terms.
- 104.
An important decision on the unenforceability of trade restraints in English law, Schroeder Music Publishing Co Ltd v. Macaulay, 1 WLR (1974) 1308, arose out of a contract agreed between an unknown composer and a music publisher active in a well-populated market.
- 105.
Directive 93/13 OJ 1993, L 95/29.
- 106.
Both Arts. 85 and 86 may be relevant. The assumption in this Section is that clubs acting alone would not be subject to control under Art. 48; cf. supra note 49.
- 107.
Supra note 16.
- 108.
- 109.
E.g., The Guardian, 4 April 1995, p. 18.
- 110.
Section 4.2.3 above; also Sects. 4.5.1.2 and 4.5.2.1..
- 111.
Supra note 2.
- 112.
Cf. supra note 54.
- 113.
Even Bosman has not yet received compensation at time of writing. Lawyers would be intrigued by litigation relating to his ability to rely on the ruling in Joined Cases C-46/93 and C-48/93, Brasserie du Pêcheur SA v. Germany and R v. Secretary of State for Transport, ex parte Factortame Ltd and others, judgment of 5 March 1996, in order to secure compensation from the football authorities, but Bosman has surely taken more than his fair share of test cases!.
- 114.
Blanpain and Inston 1996, 27–30.
- 115.
E.g., Protocol on the Acquisition of Property in Denmark, appended to the TEU.
- 116.
Art. 128 EC, inserted by the TEU.
- 117.
For discussion in this direction, Palme 1996, 238. Cf. also Paras. 72, 78 of the ruling in Bosman.
References
Anderson (1994) The admissibility of preliminary references, YEL 14:179–202.
Arnull A (1993) Annotation: Case C-83/91, Wienand Meilicke v. ADV/ORGA F.A. Meyer AG, judgment of 16 July 1992. Common Market Law Review 30:613–622.
Arnull A (1994) Annotation: Joined Cases C-320/90, C-321/90 and C-322/90, Telemarsicabruzzo SpA and others v. Circostel and others, Judgment of 26 January 1993; Case C-157/92, Pretore di Genova v. Banchero, Order of 19 March 1993; Case C-386/92, Monin, Order of 26 April 1993. Common Market Law Review 31:377–386.
Blanpain R and Inston R (1996) The Bosman case: The end of the transfer system? Leuven, Peeters/London, Sweet and Maxwell, 1, 27–30.
Brent R (1995) The binding of Leviathan? – The changing role of the European Commission in competition cases. ICLQ 44:255–279.
Cairns J, Jennett N and Sloane PJ (1986) The economics of professional team sports: A survey of theory and evidence. Journal of Economic Studies 13:30–80.
Carmichael F and Thomas D (1993) Bargaining in the transfer market: Theory and evidence. Applied Economics 25:1467–1476.
Corcoran KM (1994) When does the buzzer sound? The nonstatutory labor exemption in professional sports. Columbia L Rev 94:1045 et seq.
Cremona M (1995) Citizens of third countries: Movement and employment of migrant workers within the European Union. LIEI 1995(2):87–113, 102 et seq.
Drijber (1993) CML Rev 30:1237 et seq.
Evans (1986) Freedom of trade under the Common Law and EC law: the case of the football bans. LQR 102:510 et seq.
Greenberg (1995) The NBA – A Model for Success. Sport and the Law Journal 3(3):9 et seq.
Hailbronner (1995) Third Country Nationals and EC Law. In Rosas A and Antola E, eds, A Citizens’ Europe, London, Sage, Ch. 9, 190.
Hilf M (1984) Die Freizügigkeit des Berufsfussballspielers innerhalb der EG. NJW 10:517 et seq., 520 note 22.
Hutchings MBand Levitt M (1994) Concurrent jurisdiction. ECLR 15:119 et seq.
Karpenstein P (1993) Der Zugang von Ausländer zu Berufsfußball innerhalb der Europäischen Gemeinschaft. In: Will M, ed, Sportrecht in Europa. Heidelberg, Müller, 171 et seq.
Nafziger J (1992) International sports law: A replay of characteristics and trends. AJIL 68:489–518.
Nafziger J (1996) International sports law as a process for resolving disputes. ICLQ 45:130–149.
O’Leary and Fernandez Martin (1995) Judicial exceptions to the free provision of services. European Law Journal 1:308 et seq.
Palme C (1996) Das Bosman-Urteil des EuGH: Ein Schlag gegen die Sportautonomie? Juriszenzeitung 1996:238–241.
Peers S (1996) Towards equality: Actual and potential rights of third-country nationals in the European Union. CML Rev 33:7–50.
Renz G (1993) Freizügigkeit von Berufsfußballspielern innerhalb der Europäischen Gemeinschaft. In Will M, ed, Sportrecht in Europa. Heidelberg: Müller, 191–206.
Roth WH (1995) Drittwirkung der Grundfreiheiten? In Due O et al, eds, Festschrift für Ulrich Everling, Nomos Verlag, 1231–1247.
Schneider JD (1991) Unsportsmanlike conduct: the lack of free agency in the NFL. South Calif LR 64:797–857.
Shaw J (1993) EL Rev 18:427 et seq.
Shaw J (1995) Decentralization and law enforcement in EC competition law Legal Studies, Vol. 15, 128–163.
Van Staveren H (1989) 18th Colloquy on European law, Sport and the Law, Proceedings published by the Council of Europe, Strasbourg, 67 et seq.
Vesterdorf B (1994) Complaints concerning infringements of competition law within the context of European Community law. CML Rev 31:77–104.
Wattel (1995) CML Rev 32:1257 et seq/
Weatherill S (1989) Discrimination on grounds of nationality in Sport? YEL 9:55–92, 60–63, 68–73, 80–82, 87–92.
Weatherill S (1996) After Keck: Some thoughts on how to clarify the clarification CML Rev, 33:887–908.
Wertenbruch (1996) EuZW 91.
Will M ed. (1993) Sportrecht in Europa, Heidelberg, C.E Müller.
Zuleeg M (1993) Der Sport im europäischen Gemeinschaftsrecht. In Will M, ed, Sportrecht in Europa. Heidelberg: C.E Müller, 1–10.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
Copyright information
© 2014 T.M.C. ASSER PRESS, The Hague, The Netherlands, and the authors
About this chapter
Cite this chapter
Weatherill, S. (2014). Annotation [Bosman Case]. In: European Sports Law. ASSER International Sports Law Series. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-90-6704-939-9_4
Download citation
DOI: https://doi.org/10.1007/978-90-6704-939-9_4
Published:
Publisher Name: T.M.C. Asser Press, The Hague
Print ISBN: 978-90-6704-938-2
Online ISBN: 978-90-6704-939-9
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)
