5 Colum. J. Eur. L. 431 (1999)
Amikam Omer Kranz. LL.B., 1997, City University of London. LL.M., 1998, University College London.
The past two years have witnessed a remarkable transformation in European football. This change can be directly traced to the successful challenge of European football regulations by Jean-Marc Bosman in the celebrated ruling of the European Court of Justice. That case is significant not only for its effect on football, but also for the light it sheds on the Court’s shifting attitude toward the evolving concept of free movement in the European Union. In one of the only cases of its kind to date, the Court applied the Article 48 prohibition on state restrictions on the free movement of workers to private actors. The ruling in Bosman resulted in the removal of restrictions previously placed on the number of non-nationals allowed to play for each club. As a result, any team is now able to field as many foreigners from other Member States as it wishes.
Since the decision, England has witnessed an increase in the number of foreign players, with the result that nearly every English team now includes approximately four to five foreign players. This trend is also apparent in the other three major European football leagues: Germany, Spain and Italy. While foreign membership varies widely among individual teams in these leagues-less than two in some teams and more than half the total of players in others-the lifting of restrictions has led to a clear increase in the overall number of foreign players. This general increase has produced greater diversity within the teams, which has led, in turn, to increased skill and performance. As competition has grown between teams, public interest in football has also soared to new heights. This phenomenon contradicts the arguments put forward by the defendant football associations in Bosman, which predicted that an increase in the number of foreign players would result in a lack of identification with the clubs and a consequent decline in public interest.
The Bosman ruling also lifted restrictions on a player’s ability to move between Member State clubs, by prohibiting in many cases the enormous transfer fees imposed on players. As will be discussed in further detail, the Court found such fees to be an unacceptable burden to the free movement of workers. Bosman does not abolish transfer fees altogether; a team can still demand a compensatory sum when a player leaves for another club during the term of his contract. Indeed, fees for such transfers will likely continue to rise after Bosman, as clubs endeavor to bind their players to long- term contracts that impose a high transfer fee for those who leave before the end of their contract. Such agreements may also drive up salaries, for stars as well as average players. This outcome may be viewed as dangerous by private companies, in the sense that it renders lower-level employees more capable of influencing the company’s policies. But it can also be seen as positive in the sense that Community law is empowering individual workers.
As this paper will examine in greater detail, the Bosman case has produced many other unforeseen results and challenges in EU law. By abolishing some of the private sector restrictions on the free movement of workers, Bosman has placed increased responsibility on employers to regulate their own behavior. Likewise, however, the Court’s expanded interpretation of Article 48 permits private parties to defend their behavior using the justifications in Article 48(3). It is unclear as yet exactly how far these justifications will be tolerated.
The case stops well short of providing absolute free movement for workers. Significantly, the case fails to address restrictions placed on non-Member State nationals who, even after residing in a Member State, can be subjected to fees and other measures that hamper their ability to move to another Member State. This contradicts the approach taken under EU law with respect to goods that have entered the Community, which, after they have entered, may not be subjected to internal cross-border tariffs. Furthermore, it is difficult to reconcile Bosman with the Court’s previous case law in this area, because of the Court’s inconsistent treatment of the general right of freedom of movement.
Nevertheless, the case clearly stands as a milestone toward the achievement of a European identity. By increasing the incentives for national diversity within teams, the decision could be instrumental in efforts to overcome national prejudices. And as one legal scholar has pointed out, “[a]lthough it may at first have caused dismay in many national football associations, the Bosman decision has let the European public at large know that European integration is not all about milk quotas and greedy Spanish fishermen.”
While it appears that the main controversies surrounding Bosman have been resolved, the corollaries are far from being settled. This paper therefore examines the laws of free movement in the European Union leading up to Bosman, outlines the consequences and limitations of that decision, and discusses solutions to the problems that remain. First, this study outlines some of the basic Treaty provisions and case law concerning the free movement of workers, specifically the applicability of Article 48 to sporting activities. Next, it outlines the pre-1995 rules as laid down by the relevant football associations, and their relation to the laws of the European Union. This section includes the structure of organized football, the principles governing transfers, and the rules on foreigners before the Bosman decision. Subsequently, the paper discusses the Bosman case itself, including the facts of the case, the Article 177 reference to the European Court of Justice and an analysis of the defendants’ arguments presented to the Court. In this connection, significant treatment is given to the ways in which Bosman is distinguishable from some of the Court’s previous landmark decisions on the principle of free movement. Finally, this study examines the consequences of the judgment, its limitations, and future avenues of enforcement.