Abstract
The purpose of this paper is to examine the structure of the Bosman ruling and to explore its implications, which demand renovation of the structure of football. Although, on one level, this ‘only’ concerns football, the ruling has major economic implications for sport generally. Bosman is also of significance in the development of aspects of Community trade law. More generally, the saga offers an insight into the capacity of EC law to supply the individual with a means to disrupt the established and tenaciously defended self-regulatory patterns of an industry.
First published in Collected Courses of the 7th Session of the Academy of European Law (The Hague, Kluwer Law International 1999) p. 339 et seq.
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Notes
- 1.
Stein 1981, 1.
- 2.
Case C-415/93, Union Royale Belge des Sociétés de Football Association ASBL v. Jean-Marc Bosman Royal Club Liègois 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, judgment of 15 December 1995, [1991]ECR I-4837.
- 3.
A-G Lenz’s Opinion contains an extensive and detailed examination. For useful collection of materials and some analysis, see Blanpain and Inston 1996.
- 4.
Para. 33 of the Court’s ruling.
- 5.
Case C-1 17-91, 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.
- 6.
Assimilated players have played in the country of the relevant association for an uninterrupted period of five years including three years as a junior.
- 7.
The UK provides a particularly odd example; there are four football nationalities in the UK.
- 8.
Paras. 55–67.
- 9.
- 10.
- 11.
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.
- 12.
Case 36/74, [1974] ECR 1405.
- 13.
Case 13/76, [1976] ECR 1333.
- 14.
- 15.
- 16.
Cf. Evans 1986, 510.
- 17.
E.g., The Guardian newspaper, 4 April 1995, at 18.
- 18.
In Paras. 52–4 of the ruling, the Court rejects an out-of-time request by UEFA for measures of inquiry.
- 19.
Supra note 11.
- 20.
Supra note 12.
- 21.
Paras. 70 and 72, respectively.
- 22.
Cf. overview by Zuleeg 1993.
- 23.
Para. 77.
- 24.
Para. 82.
- 25.
- 26.
Emphasis added.
- 27.
Para. 9 in Walrave and Koch, Para. 15 in Donà v. Mantero.
- 28.
A strict application of the analysis offered in the text would question the Court’s use of the noun ‘restriction’, since what is really at stake is definition of the scope of application of the provisions.
- 29.
- 30.
Para. 76.
- 31.
Para. 131.
- 32.
Para. 132.
- 33.
In any event, the practices of a single club would probably not fail within the scope of Art. 48, though this cannot be regarded as authoritatively settled cf. supra note 25.
- 34.
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 violation of Art. 48, as explained, the Court did not consider the application of Art. 85.
- 35.
A-G Lenz’s view that an Art. 85(3) exemption cannot save a violation of Art. 48 also rules out the practical utility of the argument that nationality restrictions may deserve exemption in order to preserve the viability of smaller national Leagues which would otherwise be plundered of all their leading players. The present author’s suggestion, articulated in Weatherill 1989, 76–8, 87–92, that violations of Art. 48 may be excused in circumstances where the Art. 85(3) conditions may be met by a labour practice, seems to have found no favour with A-G Lenz.
- 36.
- 37.
Paras. 75, 101.
- 38.
In all instances, if clubs were to act together in drafting contracts they would be vulnerable to findings of violation of the Treaty competition rules; see further below.
- 39.
In practice, these might be paid directly or indirectly by an eager buyer.
- 40.
The Independent, 28 September 1996, at 24. Two newly acquired players, Ronaldo, a Brazilian, and Baia, a Portuguese national, ‘have signed for eight years’.
- 41.
The Independent, 11 October 1996, at 22.
- 42.
The Independent, 9 October 1996, at 22.
- 43.
Cf. Morris, Morrow and Spink 1996, 893.
- 44.
The situation was also distinct from Bosman in that it was ‘purely internal’, i.e. a British national not engaged in cross-border economic activity; see further below.
- 45.
Joined Cases C-267/91 and C-268/91, [1993] ECR I-6097.
- 46.
For a notorious overstretching of the reach of Article 30, see Case 45/88, Torfaen Borough Council v. B & Q plc, [1989] ECR 765, Case C-169/91, Stoke-on-Trent and Norwich City Councils v. B & Q plc, [1992] ECR I-6635.
- 47.
Case C-2/91, Meng, [1993] ECR I-5751; Case C-185/91, Reiff, [1993] ECR I-5801 and Case C-245/91, Ohra, [1993] ECR I-5851, judgments of 17 November 1993.
- 48.
A-G Lenz discusses possible discriminatory aspects, but he too prefers to rest his analysts on a wider treatment of Article 48 as a control over all restrictions on free movement, not simply a prohibition on nationality discrimination.
- 49.
Para. 97.
- 50.
Case 81/87, [1988] ECR 5483.
- 51.
Para. 16 of the ruling in Keck.
- 52.
Case C-412/93, [1995] ECR I-179.
- 53.
Case C-384/93, [1995] ECR I-1141.
- 54.
Cf. the analysis of Keck provided by A-G Van Gerven in joined Cases C-69/93 and C-258/93, Punto Casa SpA v. Sindaco del Comune di Capena et al., [1994] ECR I-2355.
- 55.
Nevertheless, the intrusion of Article 48 into the private sphere, discussed in Sect. 3.3.2 above, interrupts this process.
- 56.
Para. 104.
- 57.
Case C-19/92, [1993] ECR I-1663.
- 58.
Case C-55/94, judgment of 30 November 1995, not yet reported.
- 59.
Case 120/78, Rewe Zentrale v. Bundesmonopolverwaltung für Branntwein, [1979] ECR 649. Earlier, less sophisticated traces of this test of justification may be identified in the rule of reason’ in Case 8/74, Procureur du Roi v. Dassonville, [1974] ECR 837.
- 60.
Para. 106.
- 61.
Para. 120.
- 62.
Para. 106.
- 63.
Para. 110.
- 64.
Cf. the June 1996 decision of the Supreme Court in Brown v. Pro Football 116 Sup Ct 2116, 135 L. Ed. 2d 521, in which the National Football League’s fixing of salaries for players in a ‘development squad’ was ruled immune from antitrust liability. Analysis was devoted to the potential damage to industrial relations that could be wrought by allowing free rein to antitrust law, although the case arose in the context of salary fixing in response to an impasse reached in the collective bargaining process and Breyer J observed that the decision ‘is not intended to insulate from antitrust review every joint imposition of terms by employers.’
- 65.
E.g., Case C-41/90, Höfner v. Macrotron, [1991] ECR I-1979; Case C-179/90, Porto di Genova, [1991] ECR I-5889.
- 66.
- 67.
E.g., Smith v. Pro Football Inc, 593 F.2d 1173 (1978), concerning the National Football League.
- 68.
Cf., e.g., Frazer 1992.
- 69.
Cairns, Jennett and Sloane 1986, 3, 71.
- 70.
- 71.
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 an indispensable element in the operation of the industry, reflecting the unusual interdependence of clubs, and therefore falling outwith Art. 85 entirely and not requiring notification (perilous though such an approach might prove 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(1) could not cure violation of Art. 48.
- 72.
Para. 89, e.g., Case 175/78, R v. Saunders, [1979] ECR 1129.
- 73.
Cf. Case C-370/90, Surinder Singh, [1992] ECR I-4265; Case C-19/92, Dieter Kraus, [1993] ECR I-1663.
- 74.
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. Cf., under Art. 30 EC, Case 229/83, Leclerc v. Au Blé Vert, [1985] ECR 1.
- 75.
The Independent, 9 October 1996, at 30.
- 76.
Such labour-related agreements between employers are caught by Art. 85; the difficult question of whether collective agreements between employers and employees fall within Art. 85 does not arise. Cf. Sect. 3.7.4 above.
- 77.
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.
- 78.
OJ 1992 L 326/31, distribution of package tours for the 1990 World Cup incompatible with Article 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.
- 79.
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 78.
- 80.
Case 125/78, GEMA v. Commission, [1979] ECR 3173.
- 81.
Case T-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-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 5, was not treated as a complaint of this type.
- 82.
OJ 1993 C 39/6.
- 83.
Case T-24/90 [1992] ECR II-2223: Case T-28/90, Asia Motor France SA and others v. Commission, [1992] ECR II-2285.
- 84.
In Automec II itself and in Case T-114/92, BEMIM v. Commission, [1995] ECR II-147.
- 85.
- 86.
Case T-114/92, supra note 84.
- 87.
Para. 138.
- 88.
[1964] Chancery 413.
- 89.
Eastham was applied by the High Court of Australia in Buckley v. Tutty (1971) 225 CLR 353, in which the system of retain-and-transfer in Rugby League was held an unreason restraint of trade.
- 90.
For discussion of the economics of the game pre- and post-Eastham, see Sloane 1969, 181.
- 91.
It is, of course, possible that the domestic system which, as examined above, seems immune from challenge under Art. 48 but vulnerable to challenge under Art. 85, might be found to fall foul of the common law, as it evolves, were it be attacked on that basis to-day. Its application to out-of-contract players would seem especially vulnerable. Throughout the EC, the possibility of invoking national law, in addition to EC law, as a means of challenging the transfer system cannot be neglected.
- 92.
Supra note 88, 435.
- 93.
Art. 128 EC, inserted by the TEU.
- 94.
For discussion in this direction, Palme 1996, 238. Cf. also Paras. 72, 78 of the ruling in Bosman.
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Weatherill, S. (2014). European Football Law. 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_3
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