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Sei in: Approfondimenti Transnazionale
Implications of the Bosman case in the football transfer system

Sport is one of the most widely practised human activities. Whether it be for money or pleasure, regularly or occasionally, millions of people in the European Union take part in various forms of sporting activity. But professional sport is also a serious economic business and a lot of EU activity directly affects the sporting world.
The Bosman case is the most high profile example of the impact of the European Union on sport. This case is centred round the question of the Freedom of Movement for workers and discrimination on the grounds of nationality. It involved football and a professional Belgian player, Jean-Marc Bosman.
But it has far wider repercussions.
The ruling confirmed unequivocally that the Union's fundamental principles aimed at removing obstacles which prevent workers or employees from working in another Member State also apply to professional sports.
Transfer fees, once a contract has expired, are now considered to be an illegal obstacle. The case is already having a major impact on football as the sport comes to terms with the demise of the transfer system between Member States (although it may continue within a Member State).
In short, the Bosman case, by dictating free movement of workers, has forbidden discrimination based on nationality. This prohibition has instead caused damage to all but the most prestigious clubs as well as young players and national football teams.

 

  Football transfer system before the Bosman case

A) Before the Bosman case, the situation in European football was very different with regard to player transfers and quotas. Prior to Bosman, a football player could only move to another club with the agreement of both clubs. Usually this agreement was only reached by the setting of a "transfer fee", whereby the buying club actually purchased the player from the selling club. This applied regardless of whether or not the player’s contract with the selling club had ended. Hence, out of contract players were not allowed to sign a contract with a new team until a transfer fee had been paid, or they had been granted a free transfer.
B) Secondly, prior to the Bosman case, quota systems existed in many national leagues and also in the UEFA club competitions. The quota systems meant that only a limited number of foreign players could play in a particular match. For example, in the UEFA club competitions, only 3 foreign players (plus 2 ‘assimilated’ foreign players) could play for a team (Blanpain, 1996).


  The Bosman case

A) The Bosman Case was a legal decision made by the European Court of Justice in 1996. The case determined the legality of the system of transfers for football players and the existence of so-called 'quota systems', whereby only a limited number of foreign players were allowed to play in a club match. The decision is binding on all football governing bodies that are based in the European Union, and indirectly affects all UEFA competitions even though UEFA is based in non-E.U. Switzerland (Murray, 1998; pag.3).
Jean-Marc Bosman was a professional Belgian football player, who previously played for RC Liege. In 1990 he was in dispute with his club, which was then in the Belgian first division, and was suspended for the 1990-91 season. The player brought his legal action against the club - and later against the Belgian Football Federation and the European Football Association UEFA - on the grounds that UEFA-FIFA transfer rules had prevented his move to the French club, US Dunkerque. The Belgian footballer attacked the rule of transfer fees being paid by a club when a player's contract has expired. He also called into question the widespread practice of limiting the number of other EU nationals in a side to three players plus two others considered assimilated because they had played in the country for an uninterrupted period of five years (the three plus two rule) (http://europa.eu.int/sport/key_files/circ/b_bosman_en.html)
The European Court of Justice based its reasoning on Article 48 of the Treaty of Rome and its guarantee of the right of free movement for people within the Union. It ruled that transfer fees (except when they applied to transfers within a Member State) directly affected a footballer's access to the employment market in another EU country. They were, therefore, an obstacle to the free movement of workers, and illegal under the Treaty. The Court also ruled against any limit on the number of other EU players who could be fielded in a club team on the grounds that it could restrict a footballer's chances of being employed by a club in another Member State. The exclusion of foreign players, however, is still permitted in matches between national football teams. After considering the consequences of the historic judgement, UEFA accepted the ruling in February 1996 and began to adapt its rules.
The case was heard at the European Court of Justice, and the court found in favour of Bosman and against RFC Liege, the Belgium Football Association and UEFA. There were two important decisions:
1. Transfer fees for out-of-contract players were illegal where a player was moving between one E.U. nation and another. From then on only players still serving contracts with their teams could have transfer fees paid for them.
2. Quota systems were also held to be illegal. Club sides are now able to play as many foreigners from other European Union states as they liked (although limits on players from outside the E.U. could still be imposed) (Gardiner, 1998; pp 370-379) .
The questions asked to the European Court were:
"Are Articles 48, 85 and 86 of the Treaty of Rome of 25 March 1957 to be interpreted as:
a.   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?
b.   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?". (http://europa.eu.int/sport/key_files/circ/b_bosman_en.html)
B) The Court on December 15th 1995, (Bosman, case C-415/93), in answer to the questions referred to it by the Cour d'Appel, Liege, by judgment of 1 October 1993,decided:
“Article 48 of the EEC Treaty precludes the application of rules laid down by sporting associations, under which a professional football player who is a citizen 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”.
“Article 48 of the EEC Treaty precludes the application of rules laid down by sporting associations under which, in matches in competitions which they organize, football clubs may field only a limited number of professional players who are citizens of other Member States”.
The direct effect of Article 48 of the EEC Treaty 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 this judgment, except by those who have brought court proceedings or raised an equivalent claim under the applicable national law before that date.
It’s important to understand the exact meaning of this Court decision :
Point 1: If a professional football player's contract with his club expires and if that player is a citizen of one of the Member States of the European Union, this club cannot prevent the player from signing a new contract with another club in another Member State or making it more difficult, by asking this new club to pay a transfer, training or development fee.
Point 2: Limitations concerning the nationality of professional players who are citizens of a Member State of the European Union (within competitions between football clubs organised by sporting associations), are not allowed.
Point 3: The Court has decided to exclude, exceptionally, any retroactive effect of its interpretation on the actual effects of the judgment as regards the transfer system, but is not retroactive, except for persons, such as Mr. Bosman, who have taken steps in good time to safeguard their rights. Therefore the Court's judgment cannot be relied on in support concerning fees already paid on, or still payable under an obligation arising before 15 December 1995, except by those who have brought court proceedings or raised an equivalent claim under the applicable national law before that date.                ( http://europa.eu.int/sport/key_files/circ/b_bosman_en.html)
  Position of football players after the Bosman case

A) The decision had immediate effect and did not provide for a transition period. This meant that the Court judgment had to be applied as of 15 December 1995.
In 2000, the European Commission announced that it was taking action against the football authorities because the current transfer system breaches the right to freedom of movement between E.U. states under the Treaty of Amsterdam, even for players who are still under contract. They argued that footballers who wished to unilaterally break their contract of employment should be able to leave with a term of notice, as employees in other sectors can do, with only a relatively small amount of compensation being paid in return.
On October 31, 2000 the FIFA and UEFA released a resolution for the EU. The resolution suggests in five points how to change the transfer system: Enander (2001) in his study sums up these points:

1.Prohibition on the international transfer on minors
In order to guard against the economic exploitation of young people, it is necessary to prohibit the international transfer of players aged under 18, except in specific defined circumstances. Essentially, the situation in which the transfer of a minor would be permitted is when the family of the player moves to a new country. A young player under the age of 18 is in a vulnerable position. Such players are often more than willing to give up their academic education to pursue a sporting career (even though the chance of achieving professional success is very limited). Football bodies have a responsibility towards such youngsters, to ensure they do not leave their home and family and education behind, only to find that the dream of becoming a professional player fails to materialize. 

2.Training compensation for young players
As noted, one of the benefits of the current transfer system is to re-distribute income to the "grass roots". This allows smaller clubs and associations to continue with their training and development efforts. The football bodies have designed a "training and education package", which is intended to reward clubs investing in the training of young players. This package includes a financial "solidarity" element, which is also a characteristic of the current transfer system. The detailed content of this package has been outlined. It is envisaged that training compensation be paid on every transfer of a player up to the completion of his training (at the age of 23). For the sake of clarity, it should be mentioned that training compensation would also be paid when a player under the age of 23 moves at the end of his contract. Such a possibility was envisaged by Advocate General Lenz in his Opinion in the Bosman case. Training compensation would be paid by the new club but would also be partly financed by certain "solidarity" mechanisms, including a levy on transfer fees and a solidarity fund financed, inter alia, by income derived from the central marketing of television rights.

3.Respect for contracts ("pacta sunt servanda")
The maintenance of contractual stability is an essential element in the player/club relationship. Such stability is crucial for clubs in their "team building" efforts and also offers vital employment security for players. In addition, the relationship between a player and a club also has an important "public" dimension, since supporters identify with the players in "their" team and do not expect them to change club at the end of every season. This is, in fact, one of the specific characteristics of sport, which sets it apart from other industries. In order to maintain such contractual stability the football bodies propose that, as a matter of sporting regulation, any contract lasting for a period of up to 3 years must be respected (by the player and the club). The football bodies also propose the introduction of player contracts with a maximum duration of 5 years.

4.Transfer periods
Again, in order to maintain contractual stability and to protect the integrity of sporting competition, the football bodies also propose to introduce certain periods when the transfer of players may not occur. What is proposed is two unified transfer periods and a limit of one transfer per player per season.
 
5.Arbitration system
In cases where there is a breach of contract (for a player of any age), the football bodies propose the introduction of a new arbitration system. This system would be based on two key elements:
· respect for national law
· respect for the specificity of sport
(http://www.american.edu/TED/soccertrade.htm#legal#legal)
As regards the first element (respect for national law), the arbitration system would apply objective criteria to calculate compensation, taking into account relevant principles of national labour law. As regards the second element (respect for the specificity of sport) the system would also have power to apply sports disciplinary sanctions, as a deterrent to unethical behaviour (for example, to sanction a club which had procured a breach of contract). The arbitration system would include a tribunal with an independent chairman and each party (club, player) would select an expert from an approved list. This list would be composed of an equal number of player representatives and club representatives. Arbitration would be voluntary. Obviously, the system would have to establish its credibility with all interested parties. In this new scenario, it would also remain possible for the parties involved (buying club, selling club, player) to freely agree on a transfer amount and thus avoiding recourse to the arbitration tribunal or the risk of sports disciplinary sanctions. Finally, the proposed system would be intended to govern the international transfer of players. Having said that, the football bodies believe that the system could serve as a model for national regimes, which national associations could adjust to suit their specific circumstances and in conformity with their national law.(Enander, 2001)
B) According to the new rules, for football players the duration of their contract is fixed at five years, differentiating into two periods: a “protected period” of three years for contracts with under 28 years old football players and of two years for the over 28, and a “non protected period “ of two years for under 28 and three years for over 28 years old players.
In the “protected period” the termination of the contract is banned and there is a sports sanction for the club purchaser (ban of new contracts for 12 months, points deductions, amends etc.) and for the football player (suspension from 4 to 6 months) and also damages for breach of contract, while in the “non protected period “  there is a protection less severe which entails economic and sports sanctions but of minor entity.
The EU proclaims the new rules will have positive effects for soccer and make it more competitive. In contrast, the soccer community thinks it will dramatically change the sport and have bad effects, especially on amateur soccer.

  Successive cases
A) The Bosman case was followed by other sentences in which other sportsmen asserted their’s rights referring to the rules dictated by Bosman.
In Italy we could fix our attention on the Sheppard case and on the Ekong case.
The first case took place in 2001 (Tribunale di Teramo, ord.30/3/01). Jeffrey Sheppard was a basket player for the Roseto Basketball team. The Italian Basketball Federation permitted his enrolment as a third “non community” player, but established that the team had the possibility to play only with two “non community” players on the field. This is a discrimination act as fixed by d.lgs. n.286/1998, because the player sees his athletic and sports potentiality compromised simply owing to his condition of “non community” player. In fact the choice whether the player could line up on field would be based not only on technical evaluation but would also be conditioned by the sportsman’s nationality, which had no bearing on his ability.
So, in this case the rules dictated by the Italian Basketball Federation were declared illegitimate, because in breach of d.lgs. n.286/98 and because they were discriminatory towards the player and violated his rights to perform basketball in Italy under the same conditions as all the other players.
B) Another similar case is the Ekong case, which took place in 2000 (Tribunale Reggio Emilia, ord.2/11/00). Ekong was a football player, who sued FIGC (Federazione Italiana Giuoco Calcio) pleading he had been discriminated against. In fact the FIGC stopped him joining the Reggiana team (playing in “serie C”, the Italian second division) because the art.40 of the NOIF (norme organizzative interne) allows non-community players only to join professional football teams in “A” or “B” division, but not for the teams in “C” division. This rule contrasted with the ban of any discrimination based on nationality compromising the right to practise sport. So art.40 NOIF was declared illegitimate and Ekong’s right to join as a professional football player was asserted.
Now the situation has changed and the FIGC has restricted the purchase of “non community” players, to protect young national players. In my opinion this could increase the practice of fabricating false passports to acquire EU citizenship. Recently it’s become a common practice for lawyers to retrieve unlikely European family relations so to achieve for the players the citizenship, which would enable them to play freely in the European leagues.


  Implications of the Bosman case

The implications of the Bosman case are far-reaching for football across Europe. Clubs now need to sign players for longer contracts than before, otherwise they will risk losing their players on free transfers. Unfortunately second division clubs cannot afford to sign longer contracts with players (especially young players) who may not fulfil their potential. Therefore, the good players at all but the most prestigious clubs will usually be able to move to a bigger club on a free transfer. (The money small clubs used to make from transfer fees is rapidly drying up because a buying club will prefer to ‘buy’ out of contact players.).
“In the long run, the Bosman case may well lead to smaller clubs either going to the wall or being forced to turn amateur” (Morris, 1996;pag 893). Consequently it’s obvious that the growth of foreign players has been of no positive effect to the national football teams, that have less good players, because the clubs prefer to buy foreign players that with their low costs often are preferred to young national players, brought up by the expensive youth sectors.    
Secondly, the Bosman case has worked to the players' benefit. Because out of contract players are so sought after, the players can demand higher wages, and move to the club that offers the best wages. If effect, the Bosman case has increased ‘player power’ considerably. Now, as in all other industries, the best employees will have control over their own career, and will be able to demand wages that many would argue reflect their skills (McArdle, 2000). In various ways, a recurrent theme arising out of Bosman could be that 'the rich get richer' whether it be clubs or players. Bosman has been a factor, not the only one that has led to inflation in salary levels and generally improved contracts. This case could have made all player contracts worthless and turn professional athletes into regular workers who could quit their job with two weeks notice.
   

     Conclusion

EU involvement in international football began with the Bosman ruling of the European Court of Justice (C-415/93) in 1995. Before the Bosman case in any transfer of football player the purchaser had to pay a “transfer fee” to the selling club. Besides the quota system limited the number of foreign players that a club could line up. Jean-Marc Bosman has modified this system.
Jean-Marc Bosman claimed that the Belgian Football Federation and UEFA-FIFA Transfer rules had prevented his transfer to a French club. Bosman sought a declaration from the European Court of Justice that the transfer rules and nationality clauses were not applicable to him on the grounds that they were incompatible with both the Treaty of Rome rules on competition and the free movement of workers. The Court consequently ruled that both transfer rules and nationality quotas are contrary to the Treaty and therefore not permissible.
This case was followed by others such as the Sheppard case and the Ekong case in which there is the reaffirmation of the ban of any discrimination based on nationality.
In 2001 FIFA and UEFA decided new transfer rules dividing the football players in under and over 28 years old, establishing a “protected period” and a “non protected period” and favouring the respect for contract introducing sanctions for their breach.
Two of the most obvious negative consequences of the ruling have been less investment in player development at local level, since there is no longer as much incentive for clubs to pour resources into training programmes when they can acquire players from a cheaper or better supplier in a foreign country, and an increasing tendency for players to break their contract at will, which is often undesirable in the sporting context, and has contributed to raising salaries. Since players’ salaries constitute 80% of the clubs’ expenditures, further increases would cause them bankruptcy: this is what has happened to Fiorentina and many other second division teams.
All this can be proven by showing concrete data: quite a few football players earn more than five million euro per year or little less: Vieri (5,14), Batistuta (5), Totti (4,8), Del Piero (5,2), Cannavaro (4,8), Inzaghi (4,7), Rui Costa (4,7), Shevchenko (4,7), Nesta (4,8); these salaries actually increase even more because of sponsor contracts. Almost all these players are part of the most prestigious Italian teams, and in foreign countries the situation is not so different: football players such as Beckham, Zidane, Ronaldo, Ferdinand, Raul, Owen, Keane, Figo, Kahn, Henry earn pretty much the same sums (Feltri, 2003).
Because of this phenomenon all the football players’ salaries have grown and clubs which do not have the same income (merchandising, TV rights, sponsors) as the most important clubs, are experimenting serious economic crisis. In the last five years more than 15 “second division teams” have gone bankrupt so that they were forced to enrol the team in the amateur league (for example: Juve Stabia, Savoia, Ravenna etc.).By now this has become a common practice, but recently the players’ salaries trend and the players’ market is decreasing. Moreover the Italian government has intervened by helping football clubs and allowing them to “spread” their debts in a long-range period of time so to avoid immediate bankruptcy.
Such changes to the transfer system as have taken will merely accentuate the trend towards increased player power and the whole game dancing to the tune of big clubs and media interest. The golden age of the little club, which almost certainly never existed, will definitely not return.
Personally I think that it’s not a problem of rules, but of men. As of now one of the most important problems in soccer is that players’ salaries are too high. This problem started with Bosman but has increased because of incompetent sport managers, that were not able to stop the growth in football players’ salaries and pursued the purchase of mediocre foreign players to the national ones disadvantage.
So now that the restriction against  “non community” players has been established and after the failure of many teams, the costs now are starting to decrease.
Probably professional and competent managers alone could have been enough to get soccer on the right track: what is needed is more common sense rather than strict rules.
Sport is not and cannot only be a business. 


Dott. Vittorio Mirra

 


    REFERENCES

· Blanpain, R. & Inston, R. (1996). The Bosman Case.
Sweet & Maxwell: London
· Feltri, A. (2003). I nuovi paperoni del calcio


Libero, 23/5/2003, pag. 29
· Gardiner, S. (1998). Sports Law.
Cavendish: London, pp364-381.
· McArdle, D. (2000). From Boot Money to Bosman: Football Society and the Law,
Cavendish: London, pp13-61.
· Morris, P., Morrow, S. & Spink, P. (1996). ‘E.C. Law and Professional Football:
Bosman and its Implications’
Modern Law Review, November: 893
· Murray, B. (1998). The World's Game: A History of Soccer.
University of Illinois Press, Chicago, P 2-8

 

 

ELECTRONIC PUBLICATIONS :


· http://www.fifa.com               [retrieved on May 2, 2003]

· The European Union Court of Justice interpretation of the Bosman case . Available at:
   http://europa.eu.int/sport/key_files/circ/b_bosman_en.html                                              [retrieved on January 20, 2003]

· The European Commission. Sports and Free Movement. Available at:
      http://www.europa.eu.int/comm/sport/key_files/circ/b_bosman_en.html           [retrieved on January 20, 2003]

· http:europa.eu.int/comm/dg10/publications/move/infoeduc/sport/                    [retrieved on January 20,2003]

· Enander,N. (2001) “Proposed measures by the UEFA and FIFA regarding the transfer system”. Available at:
http://www.american.edu/TED/soccertrade.htm#legal#legal          [retrieved on February 12,2003]

 

TABLE OF LEGISLATION

CASE LAW:
· Belgian FA vs Bosman [1996] All ER [EC] 97

· ECJ 15 December 1995,Bosman, case C-415/93


· Tribunale di Teramo;sezione distaccata di Giulianova; ordinanza 30 marzo 2001, in “Foro Italiano” 2002  pag.907 e ss.

· Tribunale di Reggio Emilia; ordinanza 2 novembre 2000 , in “Foro Italiano” 2002 pag.910 e ss.

 


     LEGISLATION:
· EC Treaty, Rome 25 March 1957 (Articles 48, 85 and 86)

· Art. 40 FIGC-NOIF ( Italy)

· Legislative Decree  n.286/98 ( Italy)


Autore: Vittorio Mirra


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