The effects of the Bosman-case on the professional football leagues with special regard to the top-five leagues


Bachelor Thesis, 2007
107 Pages, Grade: 1,0

Excerpt

Table of Contents

I List of Abbreviations:

1. Introduction

2. EU sports politics and Sport Law
2.1 Council of Ministers and Sport
2.2 The ECJ
2.3 Walrave and Koch
2.4 The Dona Case
2.5 The legal situation for sport before Bosman

3. The Bosman Case
3.1 Transfer rules before Bosman
3.2 Jean-Marc Bosman
3.3 The basic of the judgement
3.4 Reactions of officials
3.5 Ideas and outlooks of scholars for the future after the judgement
3.6 Immediate results of the Bosman case

4. Cases after Bosman
4.1 The Lehtonen Case
4.2 Kolpak Case
4.3 Simutenkov Case
4.4 Summing up of the cases after Bosman
4.5 Politics and Sport after Bosman

5. Implementation of the Bosman Case
5.1 Direct Implementation after the ruling
5.2 The slow process of adjusting the teams
5.3 Harry van der Meer and the DEL (example 2)
5.4 Gentleman Agreements in Law
5.5 Summary of the first reactions

6. Changed relations between clubs and players
6.1 Player salaries before Bosman
6.3 Financial Problems in different leagues
6.4 Movement of players
6.5 Problems of the free movement of players
6.6 Transfer development
6.7 New transfer system after 2001
6.8 Rules restricting the free movement

7. Competitive balance in football
7.1 Methodology
7.2.1 Competition situation before Bosman at the European level
7.2.2 European competition after Bosman
7.3.1 Situation of national leagues before Bosman
7.3.2 Situation of national leagues after Bosman
7.4 Other statistical measures of imbalance in football leagues
7.5 Conclusion of the Competitive Balance section

8. Financial development of football clubs in Europe
8.1 The change in economic revenues of the clubs
8.2 The 20 richest clubs in Europe and their heritage
8.3 TV revenues and the share of the clubs

9. Conclusion

10. Literature

Newspaper and online articles:

11. Appendix
Appendix 1) European charter concerning sport:
Appendix 2) The European Court of Justice (ECJ)
Appendix 3) Deciding articles in the Bosman Case
Appendix 4: Transfer windows and FIFA rules
Appendix 5) Development of the numbers of foreign players in the Premier League shortly before and after the Bosman case
Appendix 6: Articles in the planed constitution of the EU concerning sport:
Appendix 7 : Foreign players in Germany in the season before the Bosman case:
Appendix 9: New transfer rules concerning the status of young player
Appendix 11: Best scorers in Champions league
Appendix 12: Champions leagues finals and clubs participating before Bosman
Appendix 13: UEFA Cup finals before Bosman
Appendix 14: Champions League finals after Bosman:
Appendix 15: UEFA Cup Finals after Bosman
Appendix 17: Spectator per game in European leagues 2003/2004
Appendix 18 :The rich list
Appendix 19: The most valuable football clubs

I List of Abbreviations:

illustration not visible in this excerpt

1. Introduction

“This is an attack on football, it destroys a system which worked perfectly fine for years“ “football will get squeezed out because of this judgement or “Euro-Shock-Clubs in Chaos” (Gassmann and Knop, 2004). Those were some of the reactions of football officials or journalist that referred to the Bosman case and the decision of the European Court of Justice (ECJ) on the 15th of December 1995. Never before a decision made by the ECJ in the area of sport, became this highly controversial and critically debated by scholars, athletes and everybody in the field of sport.

Transfers of players have been in practice since the game of football became more popular in England during the end of the 19th century. Since the season 1893/94 a player could only be registered for one club, and was only allowed to play for this team during the season[1]. This was the first restriction of player movement in football, and all other leagues, which have been formed after the English league, applied the basics of this.

If however the club withdrew the licence of the player, a new club was able to sign him for the upcoming season. Therefore, if a player wanted to go to another club, the new club had to pay the old compensation fees in order to make it admirable for the old club to withdraw the licence. Transfers have frequently taken place, as football became the sport number one in most European countries and therefore economically more important and bigger. Another restriction that was in practice for many years was to limit the numbers of foreigners on any team. In European competition only three foreigners were allowed per team.

The Bosman case brought two pillars of the existing system down. On the one hand, an unlimited number of foreign players of all EU member states were now able to play for every club in the EU. The other big change was the end of transfer fees after the contract of a player expired. Before the ruling, clubs were able to charge a fee for a player even in the case of an expired contract if they fulfilled certain requirements.[2] It was believed that especially small clubs benefit from this rule. Some experts feared that because of the end of this system clubs would not train young players anymore, since they can possibly save this money and instead buy player from other clubs (Erikson, 2000).

Now, 12 years after the case got decided the consequences are clearer, and it can be said that football is still popular and that fans still love the game. The World Cup 2006 in Germany was the biggest event that soccer ever saw, since fans from all over the world came to Germany to see their teams and to celebrate the game.[3]

Nonetheless, important changes happened on the club level. On the 6th of April 2001 Energie Cottbus was the first club in the Bundesliga that played with 11 non-German players (Kicker, 8th April 2001). This extreme case shows that significant changes have taken place after the ruling. Clubs require more players from other countries, and competition for the superstars of sport has become enormous. The aim of this paper is to identify the changes, which have come up for soccer due to the Bosman case. Therefore the main question will be the following: How did the Bosman-case affect the European football leagues, and especially the top-five leagues (England, Italy, Spain, Germany and France)?

In order to answer this question many different dimension have to be taken into consideration, since the Bosman case revolutionized football in more than one way. Thus aspects, which have to be mentioned here, include the changed number of foreign football players in the European leagues, the new transfer system, the new competitiveness situation as well as the financial development of the clubs.

Sub-questions, which need to be answered in order to support the main questions, are: What is the historical relation between the EU law and sport law? What exactly is the content of the Bosman case? Which additional sport cases where decided by the ECJ after the Bosman ruling? How did the clubs react to the changed rules? Where the players able to benefit from the Bosman ruling, and if so how exactly? Has the competitive balance situation changed after Bosman? Are there also other reasons that can explain a changed situation?

In the first part the question about the exact relation between the EU and the sport law will be answered. Sport still enjoys a certain freedom and can implement rules and laws, which are limited to the field of sport, but the EU is driving back this freedom. Thus measures and statements, which were taken by EU officials, will be examined, in order to show why the Bosman case was possible.

In the third section, questions concerning the content of the ruling will be answered. Therefore, the judgement itself will be under investigation, and additional reasons for the ruling will be identified. Some reaction of officials and scholars directly after the ruling will also be pointed out, as those show the fears, which were expressed because of the changed rules.

After this other cases that served as a follow-up for Bosman will be described, as for example the Lehtonen Case or the Kolpak case. Those cases were necessary since the ruling in the Bosman case made clear that no discriminations against players from inside the EU were allowed anymore, which had to be applied to all parts of sport.

The first and immediate consequences of the judgement will be discussed in section five. First, the implementation itself and whether or not clubs acted according to the rule will be described. Some leagues made up new rules, and handled them as gentlemen agreements. The question will be if this is in line with the Bosman ruling, or if the rules are illegal.

Section six deals with the changed relationship between players and clubs. This section will show, that players after the Bosman case are now able to earn significantly more, and that they use the chance of employment in other countries. In this part possible developments will also be introduced, and it will be shown that some football officials still try to find a way to reduce the influence of the Bosman case.

In section seven other possible affects of the Bosman case will be researched. The leading question for this part is if the competitive situation after Bosman is different. This will be analysed for the European as well as for the national competition.

In section eight the new competitive situation will be further discussed, and other reasons than Bosman which also could have lead to the new situation will be described.

Section nine will summarize the main findings of this paper.

Academic writing and statistics will form the basic of this paper. In order to fully understand the case, opinion of courts and judgements will also play a role for the development of the paper. The main focus will be on the EU, because the rules were made for this part of the world.

2. EU sports politics and Sport Law

In the founding years of the European Community of Coal and steel (ECSC) the ministers had to handle more significant issues than the regulation of sport. French foreign minister Robert Schumann stated, “the contribution which an organized and living Europe can bring to civilization is indispensable to the maintenance of peaceful relations” (Declaration of 9th May 1950). After the Second World War, it was of crucial importance to secure peace, and therefore the war influencing industries as coal and steel were seen as especially important to be combined under a European program.

The focus soon also turned to economic goals. In 1958, the European Social Fund (ESF) and the European Agricultural Guidance and Guarantee Fund (EAGGF) were created, which aim was to favour labour mobility and retraining as well as improving the structures of farms and rural infrastructures (Dall`erba, 2003).

With the extension of the economic goals the EU then called a rising gap between the population and the political elites. Therefore, the idea to create cultural events which strengthen the European idea were soon developed. The area of sport was regarded as an ideal event, as nothing else can bring people together as fast as events in this field. For example, in the year 1971 the EUREGIO Mozer Commission got founded. The goal was to create a partnership between cities and communities from the border area in Germany and the Netherlands. Today around 130 communities take part in this program, and around half of those communities hold sport events together in the year 2000 (Naul, Hoffmann, 2003). In a lot of other areas similar organisations exist and try to bring together people from both sides of the borders. Even though, only the communities at the inner-European boarders can take part, the EU tries to use such opportunities to create a better understanding between the people. Relatively early sport was also discussed in the Council of Ministers, even though only the amateur basis was of importance in the beginning.

2.1 Council of Ministers and Sport

The Council of Ministers agreed in 1961 to found the Council for Cultural Co-operation (CCC). One year later the question sport was discussed for a first time. It took until 1966 before the CCC set the common goal that “everybody has the right to do sport”. Before that time, sport was just referred to as “technical education” or “physical education” (Klose,1989 p.63).

Sport was seen as a cultural event from the start of the CCC. It was considered to be an important factor for the development of the people, as well as for the creation of a European identity.

In the year 1975 the sport ministers of the member states met in Brussels and signed the “European Sport for all Charter”, which was officially adopted on the 24th September 1976.[4] The text was revised twice, namely in the years 1992 and 2001. In the centre of the meeting was the challenge to create the opportunity for everybody to participate in sport. Therefore the competitive sport was not really influenced, even though article 1 also enables foreigners indirectly to do sport in every member state (Klose, 1989, p 67). But those measures were all political ones, and they have to be separated from the legal measures, which were introduced later. The CCC did not change the legal framework in which sport takes place, but instead tried to promote sport amongst Europeans. In the beginning, sport was separated from the European law and was just regarded as a way to close the emotional gap between the people in the member states.

In 1974 this changed for the first time as the ECJ had to decide a case of sport for the first time: The case of Walrave and Koch in the sport of biking.

2.2 The ECJ

The European Court of Justice (ECJ) in Luxemburg was established in the year 1952 with the Treaty of the European Coal and Steel Community. Its first hearing was on the 28th of October 1954. In the beginning, the court was only responsible for judicial questions in the area of coal and steel. But on the basis of the Treaty the competences of the ECJ soon were extended. Today, it is the supreme court of the EU, as its decisions concerning European issues can overrule the national courts in certain areas. The court has the assignment to protect the basic rights of the European citizens as well as to enforce EU law and to judge whether it is correctly implemented by the member states. It has legal competences in every area that falls under European law. Since sport falls under European law, as far as it represents an economical activity, the ECJ was responsible for this case.

The court is composed of 27 judges, as every member state has the right to appoint one judge, but cases have not to be decided by all judges. The court usually decides in champers of three or five judges. In some cases the court can also decides with 13 judges, and when member states or the parties request so, the court can also sit in plenary session (Shaw, 1178).[5]

One important issue for the Bosman case is that the decisions of the ECJ are final. This meant that once a decision has been reached at this level, the member states have to apply those.

2.3 Walrave and Koch

Walrave and Koch were two professional athletes in the sport of pacemaker race. This sport has two important persons: The pacemaker and the biker.

The role of the pacemaker is to drive on a motorbike in front of the biker and adjust the speed to the need of this person. The biker has to drive as fast as possible, and can use the slipstream of the motorbike. Therefore it is of crucial importance that the gap between the two people is as short as possible, because the slipstream can then be used best. It is obvious that the team needs to be adjusted in a way, so that the driver on the motorbike knows exactly at which speed to drive. The original rule was that both, the pacemaker and the biker had to have the same nationality.

Walrave and Koch were two of the best pacemaker in the business, but they complained that they could not find partners from their nations that were able to do the biking part. Thus, they argued that because they did the sport for a living, they should also be free to work with whomever they chose. Therefore, they went to the ECJ to fight the rule that outlawed the working co-operation between partners of different nations. It is important to notice, that the two did the sport professionally, and thus were able to claim that they were hindered in their profession (Tokarski, 25).

The court declared, “the practice of sport is subject to Community law only in so far as it constitutes an economic activity within the meaning of Article 2 of the Treaty” (ECJ RS. 36/74).

The driver withdrew the case in the last minute and the ECJ was not able to enforce a final judgement (Meier, 2004). The rules for Walrave and Koch were changed, and they were from that point on allowed to choose the biker they want without regarding the nationality. If a final judgement would have been spoken, it would have been likely that even bigger changes would have been a result of this.

2.4 The Dona Case

Only two years after this case the ECJ had to decide on an important sport case again. An Italian talent scout and the president of an Italian soccer team initiated this time the legal dispute. The talent scouts payment was specified by the results he achieved in his role, which meant that only if players would sign a contract for the Italian team, he would earn money. The president refused to accept certain talents on the team, because they did not have the Italian nationality, since only a few of those players were allowed to play on each team. This case seems interesting, because it has the same origin as the Bosman case, since the scout suited the Italian league in order to allow more foreign players to play for each team (Croci, 2000).

The ruling of the court was different than in the Bosman case. The court already supported the idea that more foreign players must be allowed to play in every league. At that time the number was limited to two foreign players per team that could hold a contract. But interestingly the court did not make a binding judgement for the leagues, but appointed the UEFA to find a new rule in order to let more players from different nations play.

The ECJ did not abolish limitation of foreign players in sport in this case and the general opinion of scholars was that the case seemed to be too obviously constructed. The reason for this was that the player scout must have known the rules, and he most likely had to know that his scouting for foreign talents would not be useful for the club. It seemed as if the president and the player scout went only to court in order to abolish the foreign player clause (Meier, 2004).

Two years later however, in 1978, a dialogue between the European Commission and the sport clubs let the teams agree too the first concession on the restrictions of players. The clubs agreed to allow every team to sign as many foreign players as they wanted, but only three of those were allowed on the field at the same time (Meier, 2004). This point was also used by the UEFA in the Bosman case as the UEFA tried to argue, that practically no restriction existed anymore, as the clubs were allowed to sign whomever they wanted (see next section)

2.5 The legal situation for sport before Bosman

The EU still does not have a direct influence in the case of sport. Fosters describes this with the argument that “legal norms are fixed rules which prescribe rights and duties, relationships within the social world of sport are not seen this way” (Parrish, 2003).

Sport was therefore never a complete subject of European law and also has not become so even after the Bosman case. It is rather organized in a pyramid structure, where sport organizations are mostly independent. The example of soccer is maybe the best to illustrate this build up. On the top of the European organisations is the UEFA. The UEFA is the head of the national organisations. Under the influence of the national organisations the clubs are organized, which are on the lowest point in the hierarchy (Ducrey, Ferreira, Huerta and Marston, 2003). There is no structural difference in the organization of professional clubs or amateur clubs, as both types are organized under the roof of the national organisations

(Siekmann, Parrish, Verhoogt, Martins, Olfers, 2005). This pyramid structure gets criticised as too far reaching and standing against Article 82 EC by scholars as Weatherill, (2005) but until now the basic structure of this has not been legally challenged.

Only the rising commercialism of sport gave the EU the opportunity to change sport law, because if sport represents an economic activity, it cannot be seen as a separate subject anymore and the diverse EU regulative can be applied. Even though some sport officials wanted to have a total separation between sport and EU law this never became reality. Viviane Reding, member of the European Commission in the area of education and culture pointed out that it is not possible and not wishful to exclude sport from European law (2001). But sport is not completely included in European law. The EU has no direct legal competence in sport, and thus has to find another legal basis when it decides a case in sport. For example, if the sport law violates the internal market, the ECJ can make a decision on the basis of the violation of the market.

The opinion of the experts in how far the influence of the EU should go in the near future is quite diverse. Parrish argues that it is important to “seek the strongest possible protection from EU while maintaining the greatest possible distance from the EU” (2003). Grant however argues that football has become more of a business, and points towards the rising influence the EU shall have (2006).

As already shown with the Walrave case, sport is a subject of EU law as far as it represents an economic activity (Siekmann, 2004). The ECJ always allowed the sport more freedom, and restricted the influence of the EU. Restrictions and special rules for sport are regarded as possible, when they preserve the fundamental elements of sport. The EU also tries to handle sport with “soft law” meaning that before decisions are taken, a political change of ideas often occurs. The sport organisations then can implement new rules themselves and therefore avoid the direct confrontation in front of the law. But in fundamental questions the ECJ is willing to enforce European law.

This needs to be kept in mind, when the Bosman case will be further described in the next section. Conclusively, it can be summarized that the cases before Bosman lay the ground for the case because it already made clear that discriminatory clauses for players with a nationality from another EU country are problematic. Nonetheless, the Bosman case was generally considered to be a big surprise and shock among football officials as it was the farthest-reaching case in the history of sport. No case before dealt directly with the free movement. Article 48 of the European Treaty of Rome was never enforced in sport but the statement that sport falls under European law when it is an economic activity was a step to this direction.

3. The Bosman Case

This part will clarify the reasons that were given by the court in order to justify the ruling. The immediate reactions from officials and academics will also be analysed in this section. This is especially important, as the continuance of the paper tries to show whether those first opinions became true. In the beginning, the player Jean Marc Bosman himself and his situation will be described to understand why he even went to court at all.

3.1 Transfer rules before Bosman

In most cases, the clubs traded in accordance, and the height of the transfer fee depended on this trading. Official rules were not needed most of the time, but a lot of those existed for the rare cases in which no agreement was reached.

Only in cases of an expired contract an official ruling could be enforced, as the club who had the player under contract could keep the player otherwise and did not have to sell it no matter what the offer of the other club was. Therefore, the UEFA was only entitled in the cases of expiring contracts. Only under certain circumstances the clubs could claim money for the player, in fact when an attempt to keep the player was made.

The club had to offer a new contract to the player that had to have a minimum wage, in Belgium this were exactly 30.000 Belgian France. Clubs could then claim that they had to pay for the “training and development” of the player, and therefore it was necessary to get a compensation for this effort (Antonioni and Cubbin, 2000).

If the two clubs involved did not settle an agreement the UEFA was able to step in and announce a fee that the new club had to pay if they want to sign the player. The fee depended on the age of the player and the amount of the gross income the player earned. If the clubs did not accept the UEFA ruling, the player officially still belonged to his old club (Dabscheck, 1996; p.83).

It became especially difficult when a player wanted to change from one country to another. France for example had a rule that clubs from outside the European Union had to pay double the amount that French clubs would have to do in order to sign a player. This of course was only feasible in cases when clubs did not reach an agreement by themselves, and asked the officials to settle the dispute.

In a case of a transfer of a player from one country to another the new team needed an official agreement stating “all commitments of a financial nature, including a transfer fee” had been settled. Otherwise, the player was not allowed to play for the new club, and if no agreement could be reached the player could be suspended up to two years, or until an agreement was reached. After two years the player had amateur status and was allowed to play again. In extreme cases this could mean the end of a professional carer, just because the clubs did not agree on a transfer fee even after a contract expired (Dabscheck, 1996; p 84).

The transfer fees before the Bosman case were quite confusing, since exceptions existed in every country. However one basic principle was that even after a contract expired the clubs were still allowed to charge money for players.

3.2 Jean-Marc Bosman

The Belgian Jean-Marc Bosman never belonged to the superstars of football. He was a decently talented player and struggled to make a life as a football professional. In the year 1988 he signed a contract with the RC Liege. RC Liege was a club in the first Belgian division, but they never won any important title and they belonged to the teams that had to struggle to stay in the league. Today the team is not active in professional football anymore. In the year 1990 his contract with the club expired and RC Liege wanted to cut the payment of Bosman from 120.000 Belgian France to 30.000 a year (Heermann, 2005). The main goal of this was to still receive a transfer fee for the player, even though the RC Liege had little interest in keeping Jean Marc Bosman

Since Bosman was not willing to accept the cut of his wage he was actively looking out for a new club. He even found a club that showed interest in him, the USL Dunkirque, a club of the second French division. This club wanted to sign him.

The biggest problem for the transfer was that Liege did not believe that Dunkirque was able to pay the necessary money. Even though Dunkirque agreed to pay a transfer fee, Liege was reluctant to wait until the money arrived and suspended Bosman from playing (Becker, 1999, p.30). The suspension could have been up to two years, and during this time Bosman went to court.

For Bosman himself the situation became more problematic. He went on to play for amateur clubs in Belgium and France for the next three years while he was waiting for the case to be decided (Mc Ardle, 46, 2000). He never made it back to professional football, and thus could not benefit from the judgement, which will be discussed in the next section. Professional clubs were never willing to again sign him and he had to wait until 1997 before he received a compensation of 750.000 Euro for the early end of his career.

3.3 The basic of the judgement

One important aspect that has to be mentioned before and that laid the foundation of the judgement was an opinion written by Advocate General Carl Otto Lenz which he delivered to the ECJ on the 20th September 1995. In this report he used mainly precedents made by the Court of Justice and general principles of law. He made clear that the transfer system used was illegal. He argued, that the transfer system violates current laws and the objectives (training of young players or keeping a balance in the league) can also be achieved otherwise, for example with solidarity mechanism (Blanpain and Inston, 2004).

The three articles which were used by the lawyer of Bosman, Jean-Louis Dupont, were article 48 which deals with the free movement of workers, and the article 85 and 86 (imposition of restrictive practices and abuse of a dominant position)[6] Bosman claimed that the rules violated his ability to look for a job in another country, because the limitation to three players from another nation can be regarded as a clear violation of article 48.

Article 48.2 especially states that no discrimination against a citizen of the EU is allowed, and that foreign workers should have the same rights as domestic workers. Art. 48.3 further states that everybody has the right to actively look for a job in another member state.

In order to fall under this category the player has to prove that his career as a football player is a profession and that he earns his money through sport. The fact that sport has become a business was clear early on, especially since the maximum wage that players were allowed to earn was abolished. Until 1961, even the most professional league, the English Premier League allowed only a maximum wage of 20 pounds a week (Dobson, Goddard, 1998). After this year the maximum wage clause was abolished as the football officials recognized that most clubs found ways how to pay the players more.[7] Directly after this ruling in English football the wages significantly rose and basically all players in the English Premier League were full time athletes. This already indicates that sport also represents an economic activity and that athletes can be seen as workers and employees of the clubs and that therefore article 48 most likely applies for them. But the UEFA did not agree and argued that only the “super clubs” of Europe could possibly be said to “constitute an economic activity” (Bosman,1996:104).

The opinion of advocate General Lenz, which was agreed upon the courts, was that “the size of that activity is immaterial, as is the question of to what extend it leads to a profit” (Bosman, 1996:104). The court also believed that the size is material and rejected the complaints of the clubs:

None of the arguments put forward by the sporting associations and by the governments, which have submitted observations, detracts from that conclusion (Bosman Case, Judgement of the Court paragraph 130).

Thus the court stated, that football is a multifaceted activity and that EU law applied to the economic facet of the sport (Dimitrakopoulos, 2006).

The court thus followed the argumentation of Jean-Louis Dupont and investigated if the rules would hinder people from freely performing their job. The clubs argued that a transfer fee does not hinder the players from playing for a new club, but that it is only a regulation of business activities between the clubs (Morris, Morrow and Spink, 1996).

Most studies on this issue clearly showed that if an athlete costs extra money after his contract expired, it would complicate the search for a new club. If a normal business calculation is applied, clubs will only acquire new player, if they think that the benefits of the new player are higher than his costs. Thus money, which has to be paid to the new club, would let the clubs evaluate again if the player is worth signing. Only a few scholars as Scheelhaß and May (2002) went into the same direction as the UEFA and claimed that transfer fees do not hinder the athlete in his free movement abilities. General Lenz on the other hand clearly argued that the choice of the athlete to find a working space and therefore being able to move freely is violated by the transfer fee. The court followed the advice of General Lenz again and declared the transfer fees to be illegal. The ECJ gave the following press release in order to underlie its opinion:

Application of Article 48 of the Treaty is not precluded by the fact that the transfer rules govern the business relationships between clubs rather than the employment relationships between clubs and players. The fact that the employing clubs must pay fees on recruiting a player from another club affects the players' opportunities for finding employment and the terms under which such employment is offered (Bosman Case, Judgement of the Court paragraph 74).

The UEFA argued that the players are not hindered as the clubs were allowed to sign as many foreign players as they wished, a fact that was established in the Dona case. The question of how many of those were able to play at one time was simply limited to the details of the game and therefore only a part of sport law.

General Lenz put forward the thesis in his report that this was not the case, as the numbers of players able to perform in a game, is also usually taken into account before a contract is signed. If the club already has a few foreign players on their rooster, it is unlikely that they sign another one, as the player will most likely not be able to work on the field. The ECJ followed General Lenz in his point of view, and underlined that most clubs do not have a high number of foreign players on their rooster, and this was the case because of the restriction. The ECJ stated that:

The fact that those clauses concern not the employment of such players, on which there is no restriction, but the extent to which their clubs may field them in official matches is irrelevant. In so far as participation in such matches is the essential purpose of a professional player's activity, a rule which restricts that participation obviously also restricts the chances of employment of the player concerned (Bosman Case, Judgement of the Court paragraph 120).

Another argument, which the UEFA used, was that there had to be a compensation for the training and development of the players. If players could change the club after the contract expired, it seemed not worth to invest in young players, because other clubs that do not train players can save their money and therefore invest higher sums of money in already developed players. Advocate General Lenz however noted that the transfer costs are often not in relation at all to the developing cost, and are made up by other factors. Especially that mostly older and experienced player, who might not even have played long for the club, generate the highest transfer fees was seen as an argument against the thesis of the clubs. The ECJ followed again the argumentation of General Lenz, and stated that training and development of young players can also be assured through other means and that the transfer costs after the contract expired are not the only mean to do so (Blainpain, 2003). The ECJ agreed with this and stated that:

Furthermore, as the Advocate General has pointed out in point 226 et seq. of his Opinion, the same aims can be achieved at least as efficiently by other means which do not impede freedom of movement for workers (Bosman Case, Judgement of the Court paragraph 110).

Because non of the UEFA arguments really applied and because the court believed in the arguments brought forward by General Lenz the ruling was that transfer fees after the end of a contract and the restriction of foreign players are illegal. The court also put forward that the clubs have to implement the ruling directly and that there will be not transition period.

3.4 Reactions of officials

This section is only concerned with the immediate reactions after the judgement, as the long-term development will be researched in the next sections.

Maybe the most extreme reaction came from the clubs in Germany. They felt that with the new transfer system they would have less power and therefore the established structure could be destroyed. Even a gentleman agreement was seriously discussed, under which the old rules would still be applied. This would have meant that no club would allow more than three foreigners on the field at the same time (Weiss, 2000). In the end this did not enter into force, because every player could suite this practice and the ECJ would most likely support the players position (Schubert, 2003). For the end of the season 1995/96 the clubs still acted according to the old rules, and no club fielded more than three foreign players at a time.

Journalist Paul Trow collected statements, which were made by club officials, in which they expressed their fears concerning the changed settings of club football. One interesting argument was made by Barry Fry, the manager of the English Premier League team Birmingham: “'Young players are no longer assets to the club. We could have a world-beater and as soon as he's 18 he could walk out and there would be nothing we could do about it” (The Independent, Feb 18. 1996). This was the view many officials and scholars shared.

There was serious fear that training might not be seen as a good investment, because the effects might benefit other clubs. The behaviour of football clubs in this instance can be equaled to the behaviour of other business, and as other actors on a free market. When a club trains players the club hopes to benefit from their effort, because the training costs money. If the other clubs can get the player for free, the effects of the training were external, because the benefits helped other clubs. Groenendijk (2003), Oates (2001) or Musgrave (1990) as well as other scholars agreed that in cases of external spillovers the agents would lower the level of service and training they provide, because they hope to benefit from other agents on the market and they do not have to carry alone the problems of their decision. However, as all of them basically described governments or agents on the normal market it is still questionable how far this can be related to football. But the comment by Birminghams Manager indicates a trend like this.

One interesting aspect at the judgment was that only foreign players were allowed to move from one club to another for free after the contract ended. For players who stayed in the country the old ruling was still in practice. Dortmunds president Rainer Rauball therefore stated that: “it is only a matter of time before a German Bosman will takes a case to labour court and wins. Article 48 in the Treaty of Rome is identical to German law (The Indepentend 18.02. 1996). This meant that the Bosman case could not be the end of the rulings in sport law, and that additional question which came up after the case needed to be answered. The correctness of the words of Rauball can be shown by using a player of his own club as an example. Thomas Helmer, a German defender, had an contract which expired in 1996. Because Dortmund still wanted to have money for him, but his potentially new club Bayern Munich threatened to send the player first to a club in France. The club in France could than send him back to Germany. That absurd scenario never came true, but the threat made Dortmund agree and forgo the transfer fee. This shows that further judgments were only a logical step to come.

All together, Paul Trow argued that the gaps between the leagues will get bigger. Leagues as for example the Premier League or the Primera Division will become stronger due to their econimical influence, while other leages as the Dutch or Belgium league will loose a lot of talents.

3.5 Ideas and outlooks of scholars for the future after the judgement

Schamberger, who wrote about the legal status of professional football players in England, also underlined the impact the restriction of foreign players has on the professional leagues. He stated that if the Bosman case became fully implemented it is likely that fans loose interest in the sport. Because the local basis of the player is important for the fans, he felt that if nothing will be done against the free movement the fan basis would go down (1999, 169f). Therefore his conclusion was to set new limits for foreign players, in order to still let local players play for the team. He argued that this would be the only chance for football to stay popular (Schamberger, 1999 173 f.).

Other scholars also put critique on the judgment, especially on the transfer part of the ruling. Will argued that there were only very few cases like the Bosman one, and that they could have been handled on a case to case basis like it is still done in international football outside the EU. The advantages in his eyes were that especially little clubs benefited from this system and that football will be seriously damaged through this ruling (1999).

Mc Ardle went even further in the fears he had for the future of European football after the Bosman ruling. He assumes that a lot of small professional clubs will not exist any more in 20 years, because the transfer system will collapse and the main income source for a lot of small clubs will fall away. Thus only the big clubs will be able to make a profit on the costs of the small clubs (2000.b).

Roger G. Noll had a different solution and different ideas what would happen after the Bosman case. He agreed that the teams would become more international, as the financially strongest teams will be able to purchase the best players. In his opinion this will lead towards the strengthening of European competition and eventually towards a system, comparable to the ones in the USA and Canada, where no relegation takes place (1997).

Jean-Louis Dupont, the advocate of Jean-Marc Bosman perceived the effects to be more practical and smaller. In his eyes one of the major changes would be that the best players will get longer contracts. He believed that players want to have a secure future, and that clubs are willing to give the players this contracts as otherwise their invested money might be lost when the contract expires (Caiger and Gardiner, 2000).

3.6 Immediate results of the Bosman case

The Bosman case was a severe shock for the acting people in football. But EU law and the previous cases already indicated that a ruling like this would seem possible in the near future. “The organisation of football appears to be on a collision course with more than one area of the Treaty of Rome. This should not surprise. European attitudes are beneficial to football in that the sphere of attractive and lucrative competition is widened. But they also constitute a threat to the game” (Weatherill, 1989: 87).

Most of the acting persons in football however did not see this in the beginning. They were rather shocked that the ruling went this way, even though under community law this seemed obvious.

The exemption from European law, which some officials wanted to have for football was always very unlikely to become real. Padraig Flynn, one of the spokeswomen for the Commission made this very clear:

“Nobody is above European law. Individual states are not above European law, so you can’t have a private organisation like UEFA saying that they are” (MC Ardle, 2000a; p. 59). Especially after 1993, the influence that the EU had on sport must have been more clearly. In that year the European Commission Directorate General (DG) published a report on exactly this issue. The results were that EU law directly and indirectly affected sport, even though there was little co-ordination on this issue (Mc Ardle, 2000a; p. 57). As much as 18 of 24 commissioners had to deal with the issue of sport in their field (Parish, 1998).

Free movement of workers is a main concern of the EU and is integrated into the European Treaty. Since sport is also a part of European law, the free movement of workers was a logical development.

One of the goals was to effectively adjust the transfer costs on a lower level, so that they would cover the training and developing of the player, but not the business activities of the clubs (Pons 1999). Thus the EU will respect certain traditions, which are important for sport, even though the community law would be different in cases of purely economic activities (Dimitrakopoulos, 2006).

In order to give the clubs more time to adjust to the case, the court was asked to set up a five year transition time, in which the clubs can slowly react to the new rules. But the court did not agree, which meant that the ruling and the consequences had to be dealt with immediately (Graiger and Gardiner, 2000).

It was also clear that the Bosman case could not be the last case, which was brought in front of the court.

The paper will continue by showing some recent cases, even though none of those changed the rules for professional football as drastically as the Bosman case.

4. Cases after Bosman

The Bosman case has left many question unanswered. Even though it was clear that discrimination against players from the EU was not allowed anymore, the ruling was not as clear in other situations.

For example the fact that a transfer fee still had to be paid for players who do not change clubs from one country to another, but only inside one country seemed paradox. It was generally believed that a rule like this would not belong to practice.

No major ruling was needed to change this; the national football organisations themselves changed this rule so that the ECJ did not have to decide on this issue. This was also an issue, which was handled different in every country. In Germany for instance the Kienass-Urteil one year after the Bosman case (Pfister 1998) decided this, but for example in England the Football Association (FA) did implement the rules without one player going to court.

Other cases therefore seem more important as they added more depth to the Bosman case. For the issue of discrimination against European citizens in member state countries the cases Lehtonen, Kolpak and Simutenkov were further of importance and will all be introduced. There is not enough space to cover all the judgments in as much depth as the Bosman Case but the most important issues for this paper will be introduced.

The most vital change for the transfer system was the new rules on which the FIFA and the European Commission agreed on as a political compromise in the year 2001. Even though the ECJ did not had to handle this case itself, it is a good example of the influence that European law has on sport and how its power made the football associations agree on changes. Before this judgement will be described, the implementation of the Bosman case has to be shown.

Therefore the Lehtonen Case, the case that was the next big one after the Bosman case is important to analyse. This case shows that national clauses are not the only illegal threat to the free movement issue, and that professional athletes can also be hindered in their profession by other rules.

4.1 The Lehtonen Case

The finish basketball player Jyri Lehtonen was supposed to transfer from his home club in Finland to the Belgian Club Castors Braine. In the beginning of the year 1996 he played in Finland, but after the end of the season, which was terminated at a different time in Finland than in Belgium, he wanted to change the club (Winkelmann, 2003). Because the law of the Belgian basketball association stated, that European players were only allowed to play for a new club in Europe if the transfer was before the 28th February in every year. Lehtonen changed the clubs in March and therefore was not legally allowed to play for Castors Braine. But nonetheless the club let Lehtonen play. After a successful protest of the opponent Belgacom-Quaregnon the club was declared the winner of the game. Belgium basketball association argued that Castors Braine used a player that was not eligible to play and therefore had to be disqualified for the match.

The club went to court in order to reverse this judgement and complained about the discrimination of players from the EU. The reason for this was that players from outside the EU were allowed to sign a contract with Belgian teams before the 31st March of every year, but players from the EU only until the 28th February.

The court ruled that this is a discrimination against European players, as they should have at least the same rights as players from outside. Therefore those rules are prohibited

“Unless objective reasons concerning only sport as such or relating to differences between the position of players from a federation in the European zone and that of players from a federation not in that zone justify such different treatment” (Case C-176/96 Jyri Lehtonen and others v. Federation Royale Belge de Societies de basket-ball ASBL 1996).

In this case none of those reasons could be found, and the penalty against the club Castors Braine was therefore seen as illegal. Transfer windows[8] are still legal, because they are important for the regulation of sport. If they regulate the functioning of sport those transfer windows will remain legal, as long as it remains in this frame and does not extend to other reasons, as for example discriminating players. It also has to be the same for every player inside the EU, which was not the case for Lehtonen (Official Document to this case online at: http://europa.eu/generalreport/de/2000/pt1116.htm).

The Lehtonen judgment thus provided the players from the EU with further rights. Besides from being able to play in every member state without restrictions on the numbers of European players in one team, other forms of discrimination were not allowed anymore. This ruling seemed to equal the status between domestic players and foreign players from European member states completely as the reasoning of the court made clear that discrimination is not allowed at all anymore.

But further cases had to decide, if the Bosman ruling would only matter for players of the EU or if other players might benefit from this ruling as well.

4.2 Kolpak Case

Maros Kolpak is a Slovakian handball player who was registered with the German club TSCV Östringen. His contracted was renewed until the 30. June 2003, so that he was able to play until this time for his club. The problem in his case was, that he was no EU citizen, because Slovakia was no part of the EU at that time. Therefore he was marked with an “A”.[9] Only two of those players were permitted per team, but Östringen had already signed two others before, which meant for Kolpak that he was kept in reserve (Martins, 2006).

He argued, that because Slovakia signed an agreement with the EU he should be granted the same rights as EU citizens. The case went to the ECJ and the judges stated that Kolpak was right, and that he should not be hindered in doing his profession and that he enjoys in this matter the same rights as all EU players (Case C-438/00 Deutscher Handballbund and Maros Kolpak, ECJ 8 May 2003).

This extended the Bosman case to more countries, as not only EU players from now on enjoyed the freedom of movement but also players from around 80 other countries (Martins, 2004). The special issue in the ruling was that the free movement issue only applies when players already worked inside the EU before. It is not applicable for players that lived and worked only in a non EU-member state.

In the case of football this meant that even more foreign players were now allowed in all the leagues. But due to the fact that a lot of good players are from inside the EU this did not change the situation as dramatically as in other sport. Cricket in England is the best example of how this ruling changed the settings of the leagues. Because no other good cricket nation is located in the EU the Bosman ruling had not a big influence. But the Kolpak ruling allowed players from other strong nations, such as South Africa for example, to perform in the European leagues, as long as they had not represented their country since twelve month (English Cricket Board).

4.3 Simutenkov Case

A similar case was the case of Igor Simutenkov, a Russian football player who had a legal contract with the Spanish football club Union Deportivo Tenerife. For the team he was registered as a non-EU player, which means that only three players with his status were eligible to play for the Spanish team. His goal was to acquire the same rights as a EU player, because of an agreement the Russian Federation signed with the EU. He held a resident card and a working licence for Spain, which was the legal basis for this case (Schuilenberg, 2005).

The court then ruled that article 23 of the Communities-Russia Agreement is fully applicable:

“…Article 23 establishes for the benefit of Russian workers lawfully employed in the Member state a right to equal treatment in working conditions of the same scope as that which, in similar term, national of Member states are recognized as having under the EC Treaty, which precludes any limitation based on nationality…” (Case C-265/03 Igor Simutenkov v. Abogada de Estado, Real Fedracion Espanola de Futbol and Ministerion Fiscal, ECJ 12 April 2005).

This clarified the Kolpak case and banned discrimination of third country nationals that have agreements with the EU, once the player is in the Union. Those complaints (Kolpak and Simutenkov) however are part of the free movement issue, as player cannot successfully go to court before they are in the EU, and instead this is only a protection for players who already have a contract in a member state.

4.4 Summing up of the cases after Bosman

The Bosman case was the basic for all free movement issues which arose in the field of sport. Now the judgement was extended and reaches out to third nationals. Martin puts it together as follows:

1. Free movement of workers must be guaranteed (Bosman), unless objective reasons concerning only sport as such, justify a different treatment (Lehtonen).

2. Non-EU nationals with an employment contract do not fall under the free movement rules, but benefit of employee’s rights (Kolpak and Simutenkov) (2006).

Free movement of workers from the European countries is thus considered to be the highest value, unless the special situation of sport makes it impossible that those rules can be enforced. This however can only be the case in very limited and special situations.

The rights of the third nationals were also improved with the cases of Kolpak and Simutenkov. They still do not have the freedom of movement clause, but they enjoy certain employee rights. But it is not possible for players to invoke the Bosman case in order to enjoy their rights (Hendrickx, 2005).

4.5 Politics and Sport after Bosman

The Bosman case brought a lot of attention to the relationship between sport and EU law. While most sport officials believed before, that due to the special nature of sport the EU could not enforce the law, those official saw their opinion confuted and started to have a different attitude towards the EU. The best example for this, the new FIFA transfer rules, will be described in one of the next sections.

But also in political declarations the sport started to play an increasing role. In the 1997 Declaration of Amsterdam the sport was mentioned and given a separate article:

The Conference emphasises the social significance of sport, in particular its role in forging identity and bringing people together. The Conference therefore calls on the bodies of the European Union to listen to sport associations when important questions affecting sport are at issue. In this connection, special consideration should be given to the particular characteristics of amateur sport. (Declaration No 29 Amsterdam)

In this declaration the EU recognizes the sport as socially significant and provides sporting association with some legal autonomy. But the text also makes clear, that the EU has the power to overrule sport law, and that sport is only a negotiation partner. This is still the present position today, which is emphasised in reports the EU does on the development of sport (Belet, 2006).

[...]


[1] This was decided by the Court of Appeal in England in the Radford case (1893) as Nothingham Forest went to court in order to prevent this player to sign with the Blackburn Rovers (Mc Ardle, 2000a)

[2] Those differed from league to league, but an important factor was that the old club at least offered the player a new contract.

[3] The German government estimated that around 2 million visitors came to Germany to see the World Cup. They spent a combined amount of around 3 billion Euro (Rollmann, 2006)

[4] Article 1 and two can be found in the appendix

[5] More details about the composition of the court, some of its assignments and some important decisions (including the Bosman case) can be found in the appendix. As it is not the role of this paper to study the ECJ those detailed informations will not be included in the main body of the text. The informations are taking from the official webside of the ECJ at http://curia.europa.eu/en/instit/presentationfr/index_cje.htm

[6] See the deciding articles in appendix 3

[7] Some clubs had rich sponsors that allowed the players to “work” for their company. In fact, they often never had to be at the working place, but instead became good wages and were therefore able to concentrate on their profession as athletes.

[8] Times in which transfers are possible. In all leagues transfers are only possible twice a year once in the summer break and once in the winter time. The FIFA claims that this is necessary to keep the competition fair and advises national organisations to regulate this (see appendix 4)

[9] A stands for Ausländer; German for foreigner

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Title
The effects of the Bosman-case on the professional football leagues with special regard to the top-five leagues
College
University of Twente  (Political Institute )
Grade
1,0
Author
Year
2007
Pages
107
Catalog Number
V111645
ISBN (eBook)
9783640096909
ISBN (Book)
9783640463213
File size
1152 KB
Language
English
Tags
Bosman-case
Quote paper
Daniel Schmidt (Author), 2007, The effects of the Bosman-case on the professional football leagues with special regard to the top-five leagues , Munich, GRIN Verlag, https://www.grin.com/document/111645

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